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Preservation Strategies and Data Collection from a Forensic Expert’s Point of View

Best practices on executing preservation and collection protocols with emphasis on forensically sound methods. Time is of the essence once the duty to preserve electronically stored information (ESI) arises. Failure to preserve can lead to loss of evidence, increased costs, and even sanctions. Unfortunately, lack of technical expertise and improper planning can have disastrous consequences, including spoliation claims. This webinar, led by computer forensics expert Matt Danner, will provide you with the steps you should immediately execute upon receiving a preservation request as well as best practices formulating an effective preservation and collection plan. Mr. Danner will offer insight on uncovering data blind spots as well as collecting ESI using forensically sound methods.

Key Points

  • Common Practices and Terminology
  • Evidence Preservation Triggers
  • Forensic & Other Collection Methodologies
  • Planning and Executing Collection Plans
  • Handling Phones and Devices
  • When to Stop and Call an Expert
  • Case Examples
  • Practical Takeaways

About the Speaker

Matt Danner has experience conducting digital forensic examinations and consulting for private and public clients to include corporations, law enforcement, and law firms. Mr Danner regularly provides presentations on digital evidence collection and analysis to legal organizations and law enforcement. He also frequently testifies as an expert witness related to the analysis of computers and mobile devices. His background in criminal investigations makes him a specialist in both criminal defense and prosecution cases related to digital evidence.

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Understanding your eDiscovery Index and how it finds (or misses) evidence

How your eDiscovery platform parses and organizes your electronically stored evidence can be the difference between finding or missing that smoking gun. Or worse, unwittingly handing a smoking gun to opposing counsel. Pulling back the curtain on how an eDiscovery platform ingests electronically stored documents and makes the text within documents searchable reveals hidden places where evidence may be hiding. This article explains indexing and breaks down the types of search indexes used in eDiscovery software platforms, discusses the pros and cons of each, and offers solutions to ensure that you never miss crucial evidence.

Indexing occurs during the upload of your documents to your eDiscovery review platform. A number of processes run which separates and organizes your data. The text, in particular, is extracted from your documents and filtered into a database or index. When you enter a search query your software does not review each document searching for the word; that could take hours or days. Rather your software refers to the index (just as you would in a textbook) in order to quickly pull the relevant documents for your review. The process by which the text is extracted from your documents to be placed into that index is critical to the quality of search results.

There are 2 basic indexes used in eDiscovery software platforms, an OCR Index or a Text-based (also called Native extraction) Index.

OCR stands for Optical Character Recognition. In this process, your electronically stored documents could be originally scanned or saved from a native document through a virtual print driver. Specialty OCR software recognizes alpha-numeric text patterns. For example, a Word doc uploaded would be “printed” within the software engine and the text that appears on that virtual print would be lifted off the page and indexed.

Text-based Indexing is also called Native Extraction Indexing because instead of processing the document as a printed page it rather looks at all of the underlying code and data within a document. Where OCR sees the document as a print, Text-based indexing lifts the hood and extracts all of the computer-embedded text in a file and additionally will capture the data that you do not see, such as comments.

The pros of one indexing approach are the cons of the other and vice versa. Specifically, an OCR-based index may miss hidden fields, such as hidden columns on an Excel spreadsheet, while a text-based index would not. Conversely, a Native extraction-based index will not read (index) the text on an image, including scanned or PDF’d documents, where an OCR index will.

This is an example of a native PowerPoint document. When you receive this doc as a .ppt file an OCR-based index would create a virtual print of each slide and lift any text that appears on that print for indexing. The embedded images with text, like this chart titled “Load Growth Model”, would have all text that appears on the chart indexed. Speaker notes, however, like this one regarding “November Data”, could be missed as notes do not normally show on a print, by default.

Conversely, a native extraction-based index would only recognize the .jpg title of the image of the chart and index that file name as text. It cannot “read” an image (as OCR can) and so none of the text appearing on the chart would be indexed. It would, however, pick up the speaker notes regarding November Data. When you search for the company name “CAISO” an OCR-based Index would retrieve this document but a Native Extraction-based index would not. When you search for “November Data” the Native Index would retrieve this document, but an OCR index would miss it. If you were to perform a Boolean search for “CAISO AND November Data” neither index alone would return this document as responsive as it would only see one term or the other.

Some modern eDiscovery software providers will offer both indexes, however, they are siloed and so you would have to run your entire search twice, once through each index. This not only doubles your search time but still leaves you vulnerable to miss evidence when you are using Boolean searches to narrow results. Some eDiscovery vendors will instruct you to write additional language into your ESI order in an attempt to mitigate the loss of potential evidence. Unfortunately, the more complex an ESI request the more likely that mistakes will be made and evidence missed.

Lexbe has solved this false ‘index dilemma’ by creating the first concatenated eDiscovery search index, our Uber-Index℠. At ingestion, documents are run through both OCR and Native extraction indexing simultaneously. Then the OCR and Native-Extracted indices are compiled into one single, searchable database. All text is captured by these two complementary processes, and all evidence is searchable.

Additionally, Lexbe offers an integrated translation feature which is also included in our Uber Index for seamless search in either language. Whether you opt for Lexbe to perform your document translation or upload your own translated docs, our software will tie the original doc to the English translated one for integrated search and document review.

Finally, Lexbe also performs an advanced metadata extraction at ingestion for precision searches. Details such as the author of a document are extracted and will be searchable.

Features OCR Index Text-Based Index Lexbe Uber Index
Embedded Text
Charts
Budgets
Scanned Docs
Hidden Cells/Sheets
Comments
Tracked Changes
BCC Field
Meta-Data Extraction
Translated Text

With the Lexbe eDiscovery platform, your search is faster and more complete than with any other index on the market. For more information on how indexing works watch our webinar Best Practices to Avoid Missing Evidence in Large Document Reviews, part of the Lexbe eDiscovery Webinar Series.

9 Tips for Creating Searchable PDF Documents for Review

The searchable PDF (portable document format) is becoming increasingly relevant to legal professionals in discovery, document review, and related litigation matters. One of the main drivers of this trend, in addition to popularity in corporate environments, are court requirements in many jurisdictions that require pleadings and motions to be filed in PDF. Fortunately, there are many low-cost options that allow firms and organizations to inexpensively create PDFs and newer versions of Adobe Acrobat support Bates numbering and legal redaction. Below are nine best practices that will help you maximize the searchability and benefits of using PDFs in discovery.

1. Choose the ‘Text-Under-Image’ Option: When scanning a document, you may be presented with different options for types of PDF files. If available, you will usually want to choose the option that applies optical character recognition (OCR) to make the document text searchable. This can be implemented in different ways depending on your specific hardware and software, including a ‘”make searchable (apply OCR)” option, or “text-under-image” or “searchable PDF” file type options. This means that your scanned document will be text searchable within the Acrobat viewer and many other programs designed to search PDF files. The other type of PDF you could choose is called an “image-only PDF”, which is not text-searchable. When viewing a PDF file you can tell if a file is searchable by looking for the ‘select tool’ on the top bar in Acrobat Reader. This indicates that the file is text searchable.

WhySearchablePDF2. Get the Resolution Right: When scanning images to PDF for litigation purposes, 300 dpi (dots per inch) is a safe option. Scanning at a lower resolution (e.g. 200 dpi) can work well and will produce a smaller file, but legibility can suffer with smaller fonts (e.g. 6 pt. in financial documents). OCR quality can also suffer from lower scan resolutions. The trade-off is that larger scan resolutions results in larger file sizes. File scans larger than 300 dpi usually do not appreciably increase the readability of a document or its OCR quality.

3. Scan to B&W, Grayscale or Color: For litigation review purposes, ‘Black & White’ is often a good option, particularly with good quality originals, and creates a much smaller file than a grayscale or color scan. Color or grayscale may be required for photos (which do not display well with a ‘black and white’ setting). For some documents, a color scan may be critical to understanding the document, such as some charts (e.g. in Powerpoint presentations) or CAD (computer aided design) documents. Color scans and grayscale scans will be larger than B&W or grayscale scans.

4. Watch the Other Settings: Scanners will often have a number of other settings that can help improve scan quality and OCR. These include ‘deskew’ (rotates any page that is not square with the sides of the scanner bed, to make the PDF page align vertically), ‘background removal’ (whitens nearly white areas of grayscale and color input), and ‘edge shadow removal’ (removes dark streaks that occur at the edges of scanned pages, where the scanner light is shadowed by the paper edge). ‘Deskew’ will help with OCR accuracy, while ‘background removal’ and ‘edge shadow removal’ can improve readability, but can sometimes impair OCR accuracy. For important documents, it’s best to run some tests.

5. Get a Quality OCR program: All OCR is not created equal. The quality of optical character recognition varies substantially based on the quality of the program and the various settings chosen when running the program. Programs often have a ‘fast’ and ‘slow’ mode, with the slow mode usually delivering better quality OCR. Some programs will auto-rotate pages when necessary, and others will not and will make resultant OCR errors.

6. Pay Special Attention to the Numbers: One secret of OCR programs is that they routinely rely on dictionaries to recognize the text of particular characters. This works pretty well with words (if they are in the dictionary), but doesn’t help with numbers or other arbitrary characters not in a dictionary. Expect to see lower quality OCR in financial reports and other number-intensive documents.

7. Make Sure Your Litigation Support Software Really Supports PDF: Many legacy litigation software systems were designed around files saved as TIFFs (tagged image file format), an older type of file format that does not support integrated text as part of the file as PDF does. These older software systems usually have added some support for PDFs, but often the integration with PDF is incomplete and some features are not supported with PDF files.

8. Do Redactions the Right Way: Redactions can be tricky in PDF and this has been a primary reason why TIFF has survived as a popular format in legal matters. A trap for the unwary is that it is possible in a PDF file to redact text on the image of a document, and still have the redacted text be searchable! In a text-under-image PDF file, the redaction must be done on the text and the image. This problem has been fixed in the latest version of Acrobat (Acrobat Professional 8 or 9), and this program can be used for PDF redactions. Third party tools doing redactions are available as well. Many practitioners play it safe with redacted documents by printing, marking out by hand, and rescanning. This method is manual but fool-proof, and works well if number of documents to be redacted is limited.

9. Be Specific in Discovery Requests: Litigators are increasingly asking that documents produced in response to discovery requests be provided in electronic form as PDFs. If you do this, be specific as to the matters above. In particular, be sure to specify that the scan resolution be 300dpi and that the OCR be applied. You may also wish to ask what OCR software is used and what settings will be applied. To be non-specific is to invite an adversary to return documents scanned at 150dpi without OCR, that may be unsearchable, illegible and unintelligible!

Embracing the Power of the Cloud in eDiscovery

Cloud infrastructures provide an unrivalled opportunity to control eDiscovery costs without sacrificing quality, functionality, or security. Firms without large litigation support departments can instantly increase their discovery and review capacities with on demand/SaaS eDiscovery – often allowing them to take on cases they were previously unable to.

When firms make the decision between bringing litigation support and eDiscovery functions in-house or looking for scalable external solutions, there are several questions whose answers weigh heavily on the decision. How big is the firm? Do caseloads support the newly built capacity? Is there capital available to cover the high fixed costs and overhead associated with establishing or expanding an internal support department? Smaller firms consider these questions and often find themselves caught between opportunities to grow and take on larger cases and constraints imposed by the costs associated with establishing the necessary internal infrastructures.

Cloud-based ediscovery technologies provide another option: firms can immediately access massive eDiscovery capacities, expert litigation support professionals, and advanced review capabilities and pay only for what they actually use. Cloud solutions like Lexbe eDiscovery Platform can support document intensive litigation from collection through to trial. All you need is access to a browser and the internet to use most web-based/cloud ediscovery tools.

5KeyFactsCloudeDiscoveryThe Cloud is a term that has developed to describe scaled, non local storage of data. That is, instead of saving a file to a computer’s local hard drive, one can save that file to a centrally managed and expertly maintained hard drive that lives in a highly secure and professionally staffed server facility. The connection between the local computer and files in the cloud is the internet. One major benefit of cloud infrastructure for legal professionals is accessibility. Because your files are stored in the cloud, litigation teams can access them from any internet-capable device. Storing files in the cloud means that being separated from a computer or phone doesn’t really separate you from your data.

In addition to keeping ESI within reach, the cloud also keeps your data out of the hands of unauthorized persons. Data centers specialize in creating the most secure environments in the world with a wide range of measures employed to ensure redundant storage and encrypted access. The largest banks in the world rely on the security of the cloud whose security features are practically inimitable on a local computer. When you hear criticisms of cloud security, it is important to remember that “cloud” is a general, descriptive term and not all cloud providers are providing the same security protocols. It is critical when considering cloud software to ask who the infrastructure partner is to ensure credibility. For instance, Lexbe eDiscovery Platform and services run on AWS SOC III Servers, which were recently named as the sole “leader” in service provider security in a recent Forrester Research Report.

In an eDiscovery context, firms of all size have taken advantage of the accessibility and security benefits offered by the cloud. For small and mid sized firms. these benefits are much more stark and also include substantial cost reductions and efficiencies. It is simply not financially expedient or necessary for smaller firms to pay for expensive in-house installation of software and servers, in addition to hiring additional litigation support staff that will need to manage them locally. There are better options available.

Developing A Clear Picture With Early Case Timelines

Getting a grasp of the strengths and weaknesses of one’s case early becomes more important and more challenging with substantial ESI. Creating early case timelines can help keep your case perspective accurate.

Assessing one’s case early is as important as ever. Keyword selections, used for discovery requests and Rule 26 Meet and Confer agreements, depend on accurate identification of the important case issues. If the critical issues of a case are not identified until later, then it will become necessary to request additional documents based on new keywords, or from different custodians. This can add substantial cost to discovery collections and tries the patience of opponents and potentially the court. At some point in the discovery process the cost of additional collections will shift to the requestor, or it simply will not be possible to identify new issues too late in the process. A related concern involves identifying potential claims and defenses early enough in the discovery process to be able to include them in the pleadings.

ESI intensive cases are even more difficult to assess early because distilling information about the case from large amounts of data can be expensive and is dependent on both knowing the issues to generate keywords — a sort of ‘catch-22’ – and being in possession of the data. If one is trying to get the important facts early in the case from the ESI (as opposed to witness interviews and case participants, etc.) then the review of ESI will be an iterative process of trying proposed keyword searches, manually reviewing a sample of the documents returned by the search results, and then revising search terms.

As part of the early case assessment process, counsel can identify what discovery is needed, identify key witnesses and data custodians, construct factual timelines, and determine the strengths and weaknesses of the case. The goal of this proactive approach is to develop an early strategy for the case, realistically evaluate the case, determine the cost and budget to prosecute/defend, and identify business practices that might be modified to minimize litigation exposure in the future.

This probably sounds like ‘mom and apple pie’ and is certainly not a new idea. But then why isn’t this done in every case? There are several real life barriers to doing a comprehensive early case assessment. One is the need for client support. Conducting an early case assessment will cost money and a client may view it as ‘over-working’ the case if they don’t understand the process and benefits. These benefits include a better early understanding of the case that can lead to opportunities for settlement and reducing unnecessary eDiscovery costs.

A more subtle objection is the concern with being the bearer of bad news. A legitimate worry is that the client may not be ready to hear bad news about the case and may be inclined to ‘shoot the messenger’. Some clients think they need a very gung ho ‘junkyard dog’ type of litigator and might interpret an early balanced analysis of case strengths and weaknesses as lack of confidence from their attorney. This problem is compounded when the litigator has been recently hired and does not have experience with the client. For these types of clients, some lawyers take the approach of letting the adverse facts of their case sink in over time. Eventually the client begins to accept the shortcomings in their case and are more inclined to settle.

The cost of the ‘wait and see’ approach of not doing early case assessment is greater today, and will continue to grow, because of increased volumes of ESI. Some cases may have so much potentially relevant ESI that the cost to review it may outweigh the benefits of litigating. In reality, a case in which the opposition has enough merit in their case to allow extensive eDiscovery justifies an early evaluation of that cost and raises the case’s settlement value. Also, not understanding one’s case early can greatly increase the cost of conducting eDiscovery by requiring repeated requests and reviews as key issues and keywords are not understood – and custodians and data repositories not identified – until relatively late in the case.

When constructing chronologies very early in the case, they may be developed from limited available sources: facts from initial client interviews, review of key documents forwarded by the client, and alleged facts from the opponent’s’ pleadings. However, even limited sources can begin to give a good picture of where the strengths and weaknesses of the case lie. Early case assessment tools, like those found in Lexbe eDiscovery Platform, can help you construct timelines at the earliest stages. Certainly all lawyers construct timelines as a case progresses towards trial, but there are advantages in doing it as early as possible in an environment that is integrated with the case data. The most important of which is that, as iterative ESI collections arrive, early case timelines can be updated automatically and in real time.

Early case timelines can also include facts that are needed to support the claim or defense based on anticipated jury instructions for the claims involved. These facts remain ‘orphaned’ until associated with one or more documents or portions of deposition testimony. The existence of these orphaned facts serve as red flags for evidence that needs to be developed during the discovery stage. Similarly tracking facts that one’s opponent needs to prove for his or her case can serve as focal points for developing opposing evidence and summary judgment motions for evidence that has not been successfully developed during discovery.

Timelines also serve as a good way to begin educating clients about the potential holes or weaknesses in their case. A client can begin to digest a truer picture of his or her case through periodic review of timelines showing positive and negative facts backed up with documentary evidence or deposition testimony. Such chronologies can also help the client to develop supporting evidence, both documentary and oral, by jogging the client’s memory for missing or contrary evidence. As the case develops and more ESI comes in, the issue timelines can be supplemented more easily. With functional case timelines, an attorney is also in a better position to quickly develop and defend summary judgment motions and to identify specific facts backed with evidence.

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