E-discovery: the widening net of online communication data mining

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From political battlefields to courtroom litigations, the data of past and present electronic communications of key players, including corporations, is increasingly playing a vital role as e-discovery, a hybrid profession which blends technical know how and legal expertise, matures.

Over the last decade, there has been an erosion in the mindset of “delete all,” which was based on the fear that e-mails handed over to an adversary during e-discovery, for example, might contain a “smoking gun” that could derail chances of a win in a litigation case.

Now almost all organizations have accepted the fact that it’s better to keep electronic communications, including e-mails and other content, even if they contain potentially damaging information, as it’s virtually impossible to delete all copies of e-mail that are sent outside.

As the arms of e-discovery have reached deeper and deeper into virtual domains, every organization wants to be on top of the information and not walk into a courtroom as the only party not privy to that information.

With globalization, the players in the courtroom have broadened from Pan American to include Europeans and Asians, the latter being a challenging force due to cultural nuances, language barriers, and a topdown hierarchy of work mechanisms, among other factors.

In the first of a series of articles exploring the subject of e-discovery, Tejinder Singh, Editor of India America Today, spoke to Paul Starrett, Chief Business Operations Officer of UBIC, a provider of end-to-end e-discovery and digital forensics solutions and services for corporations and law firms. 


Where does most of the evidence in an e-discovery case stem from?

Most evidence in the average case is comprised of email with attachments, word processing and spreadsheet documents, as well as presentation and image files. However, the types and amounts of evidence for a case is ultimately dependent on the factual and legal issues involved. For example, a lawsuit over theft of intellectual property regarding the design of a computer chip might require obtaining files used by a unique computer aided design program. As another example, a lawsuit might involve an enterprise suing an accounting firm for negligently filing a tax return. In this case, accounting software might have been used and files generated by that application may need to be included. The bottom line is that if there is an issue that can be sued on, and if there are electronic records that may be needed, i.e. relevant to the suit, they may be required in the litigation.


How is the identification process vital, as e-discovery is very expensive?

The identification process relates to cost on several fronts.

First, given that the cost to process, review and produce data is expensive, it makes sense to have a clear and focused plan to narrow the data to only what is required, i.e. relevant to the lawsuit. Duplicate files can be removed, date ranges can be carved out, unnecessary file types can be removed, and keywords can help isolate only what is needed. Additionally, the cost to review the data that has been produced is also significant. So, identification plays a central role in mitigating e-discovery costs.

Last, the cost for failure to produce relevant data can be most significant. So identification is important in this way, too. If a judge finds that a party failed to identify and produce relevant evidence, the judge can impose sanctions which can include financial fines (of a sort), striking a legal claim or claims, instructing a jury to take a negative inference or an inference in favor of the aggrieved party (the party who should have received the relevant evidence), among others. These types of ramifications can have the highest costs.


What do you see as the challenges facing e-discovery in Asian countries, including India, when the litigation starts rearing its ugly head there?

The issues faced in different cultures stem primarily from language, cultural and workflow issues. These issues can include, but are not necessarily limited to:

First, language barriers make it difficult for non-language speaking personnel to identify relevant evidence. In the case of Asian countries, most of their litigation occurs here in the US for reasons of efficiency and perceived increased fairness. As such, Asian-speaking personnel are required; this is not always easy to arrange.

Second, many of the software applications that create the file types (that may become the subject of relevant evidence) are unique to their country of origin. Lack of knowledge, or worse, not knowing anything about the existence of these applications, creates problems.

Third, there are character encodings unique to certain languages, whether Asian-based or India-based. Internal character representations must be properly identified for searches to work at all. If the wrong encoding is identified then any search will be useless. This will miss relevant data and may allow privileged data to make its way to the opposing party.

Fourth, there are privacy laws and “blocking” statutes in these countries which either restrict or entirely prevent data collection and processing outside of their borders. This inability to collect and process data from a foreign country makes it difficult to produce the data to the opponent in a law suit.

Last, there are cultural differences that affect when and how a party to a lawsuit can collect its data. Many foreign countries do not have this concept of reciprocal discovery (i.e. where lawsuit opponents provide their data to their opponent) and, as such, it is awkward if not completely counter to their sense of legal process.

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