United States: Discovery For A Modern Age: E-Discovery, Metadata, And Cost Savings

Last Updated: February 12 2019
Article by Chris Edwards

Electronic discovery ("e-discovery") isn't the most popular legal topic out there. 

Even so, as the law becomes more technology-driven, e-discovery is quickly becoming a key tool in the sophisticated litigator's belt.  This article provides a quick primer on e-discovery.  Hopefully, it will help you utilize this important technique in your practice.

Modern Civil Practice and the Focus on Cost Savings

In case you weren't aware, the civil practice has changed.

Clients expect their lawyer to take real, tangible steps to save costs—and to pass those savings along.  That's why many law firms are using programs like Legal Lean Sigma, a process adopted from Six Sigma that improves the efficiencies of the practice of law.

It's not just clients.  Bodies that regulate the practice of law, like the North Carolina State Bar (the "State Bar"), also are taking note.  Recently, the State Bar adopted a proposal that requires all lawyers to take at least one hour of CLE credit that focuses on technology.  North Carolina joined Florida on the cutting edge, becoming the second state to adopt such a requirement.  That puts technology training on near equal footing with ethics, as the second course mandated on a yearly basis.

Using Technology to Save Costs

Speaking of technology and cost-savings, one tool stands out above the rest: e‑discovery.  Effectively utilizing e-discovery will save you a significant amount of time and, hopefully, will save your clients a significant amount of money.

E-discovery isn't a new concept.  The Federal Rules Advisory Committee started receiving reports of problems with computer-based discovery in 1996.  And the Advisory Committee began to consider rules for electronic discovery as early in 2000.   That effort culminated in the 2006 amendments to the Federal Rules of Civil Procedure.  The 2006 Rules were the first iteration of the Federal Rules to contemplate explicitly the discovery of "electronically stored information."

Even though it's been around for more than a decade, e-discovery isn't universally understood.  Too often, lawyers consider their obligation to preserve and produce "electronically stored information" satisfied merely by producing, for example, emails.  But the documents that you can see are only half the story.

Metadata: The Key to Effective E-Discovery

The other half of the story comes not from documents, but their relationship.  The way that an email chain fits together, or the way attachments fit within that email chain, those things have meaning too.  And it is that meaning—those relationships—that will help you to better, and to more quickly, understand the documents that you receive from opposing counsel.  The hope is that the efficiencies you gain from that understanding will help you cut costs and gain a competitive business advantage.

Metadata are the information that tells that story—the information behind the information.  So what are metadata?

In the case of email, a production with metadata has four constituent parts:

  • TIFF format images of each file;
  • a text file, containing the text of each email;
  • an OPT, LFP, DII, or LST load file; and
  • a metadata (.DAT) file.

Each one of these files, or groups of files, performs a different function.  For instance, TIFF files simply are images of each email.  The text files allow a text search of those imagines.  In that way, the TIFF and text files together are much like a text-searchable PDF.  The load and metadata files provide the enhanced functionality.  More specifically, the load files and metadata file will preserve parent-child relationships between emails and attachments.  By so doing, those files will allow you to know where chains of emails start and stop and will allow you to connect an emailed attachment to its email.

The .DAT file—the one with the metadata—can contain a wide array of information.  At a minimum, you'll want the following: (1) BegDoc, (2) EndDoc, (3) BegAttach, (4) EndAttach, (5) Custodian, and (6) TextLink.  Each one of these fields performs a different function.  For instance, "BegDoc," "EndDoc," "BegAttach," and "EndAttach" describe where each document and attachment begins and ends.  The "Custodian" field simply describes who had control over the document.  And the "TextLink" field links the tiff format documents to their related text document.  This information will give you the power that you need to slice and dice the other side's production and to really understand your case.

Despite all its benefits, metadata-intensive e-discovery does have its drawbacks.  For example, using the data isn't intuitive.  You may be thinking, "This is great, but how do I use all these files?"  That concern ties into a second, perhaps more substantial concern: If we're being honest, reviewing documents produced in this format usually isn't something you can do on your own.  Typically, you must hire a third-party contractor to upload and host the documents for you (though some firms are fortunate in that they own the software and have enough servers to process data in-house, rather than relying on a contractor or vendor).  Using the host's software, you'll be able to review documents in a quick, efficient manner.  And, using the metadata tags, such as those that identify attachments, you'll be able to really drill down on what matters.

Conclusion

Given the recent push toward streamlining legal practice, e-discovery, especially in complex or document-intensive matters, is an increasingly important tool.  It will save you time, which, in the long run, will save your client's money.

If you still feel lost, don't worry! If you're not currently in the middle of a document intensive project, I'd encourage you to take a CLE course on using metadata.  But if you're not so lucky, I'd encourage you to associate technologically savvy co-counsel.  They should be able to assist you with your e-discovery, and you might just learn a thing or two in the process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions