October 31, 2022
There’s a theme running through this post – Scary Movie titles in honor of Halloween! See how many you can find, including the title above.
In my last post, I talked about discovering digital truth being the real purpose of eDiscovery. Various forms of discoverable electronically stored information (ESI) have added challenges to conducting eDiscovery efficiently and effectively. But discovering digital truth in eDiscovery has always caused its share of Misery – even back in the days when email and office files were the primary source of discoverable evidence.
Looking Back at Discovery of Email
Because email has been used in business communications for over three decades, it has historically been the predominant source of ESI in litigation and other eDiscovery use cases. Workflows for discovery of email are now well established and eDiscovery platforms have many useful features to facilitate email review – including thread identification, communications network diagrams to identify communications patterns and, of course, predictive coding, so today, it may seem as if it’s Child’s Play to get productions to their Final Destination. In-house and outside counsel often object to discovery requests for data from mobile devices and collaborations apps as “burdensome”, but email discovery workflows are so well established, we rarely see those arguments anymore about email. Parties might object to the volume of email being requested, but not email as the source of ESI.
That hasn’t always been the case, however. When the eDiscovery industry was just getting started, discovery of email electronically was unusual at first – it was literally The Fly in the ointment to get email produced. Electronic email evidence was initially printed or paper or imaged to TIFF files to fit into well-established workflows (at the time) for paper discovery. Per GB processing fees were in the hundreds of dollars and processing of even a few GBs took days to complete (now, it typically takes minutes). Want The Shining example of how difficult it was? Heck, here are seven examples of challenges that legal professionals were faced with in the early days of email discovery:
- Printing emails included the name of the person printing the email: As if transformed by Gremlins, printing to hard copy or converting to image originally required Outlook – as a result, the name at the top of the email would reflect the account user for that Outlook account used for processing, regardless of whether that person was involved in the communication.
- PST files would often be corrupt: Copies of Outlook mailbox files have been (and continue to be today) stored locally as Outlook Personal Storage Table (PST) files. Those files would often become corrupt and needed to be repaired before they could be processed for discovery, using a Microsoft utility known as SCANPST, often by your IT team.
- There was a size limit for PST files: Outlook also originally imposed a 2 GB size limit on PST files (partly to address the corruption issue described above). That’s why several custodians in the Enron data set have several PST files.
- Internal emails showed a different email address: Early versions of Exchange used to represent the email address between internal recipients differently, which caused challenges from a searching standpoint. For example, here’s how my email address might look back then in an internal communication: Derek Duarte[/O=FIRST ORGANIZATION/OU=EXCHANGE ADMINISTRATIVE GROUP (GZEJCPIG34TQEMU)/CN=RECIPIENTS/CN=DerekDuarte].
- No duplicate identification: Emails are often sent to multiple parties, so when you collect emails from several of them as custodians, you’ll often get several copies of the same email. Before MD5 and SHA-1 hashing algorithms were used to identify duplicates based on content, it was difficult to identify duplicate files and duplicate custodians that had those same emails.
- No email thread identification: Early versions of Outlook didn’t include the Hash field to identify emails that were part of the same thread, so you had to use content-based approaches to attempt to identify email threads, which were not totally reliable.
- Proliferation of signature logos: Before eDiscovery platforms developed ways to identify and suppress them, signature logos were treated as attachments to the email in review. That meant a lot of additional “documents” for reviewers to click through during document review.
Why is this Important?
The challenges discussed above are just some examples of challenges that used to exist with email discovery, keeping professionals working From Dusk till Dawn to meet deadlines. So, why is it important to look back at the challenges of the past? To illustrate that every form of evidence in discovery is challenging. Even for a long-existing form of ESI like emails, The Thing is that new challenges may be just around the corner if communication habits change.
Addressing those challenges with each form of ESI takes leveraging expertise and technology, even if the ESI form is relatively new as a discoverable form of evidence. You don’t need a Sixth Sense for handling “newer” ESI forms, but you do need experienced eDiscovery experts. It’s our job to provide efficient and effective workflows to support “newer” ESI forms to support your needs – that’s what we’re here for!
Winston Churchill once said: “Those who fail to learn from history are condemned to repeat it.” The lesson to be learned here is that discovering digital truth in eDiscovery has never been easy – each new form of evidence introduces challenges, but they are necessary challenges to be overcome to include all evidentiary forms of ESI that lead to fully discovering digital truth. Forcing new forms of ESI into pre-determined workflows that they’re not designed for will make you go Psycho!
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