litsupport summary for the week ending on 10/26/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. What do litigation support professionals (LSP) see as the best way(s) for vendors to do their work?
A. Not strictly a technical question, but one that inspired important discussion. Note also by the style and sometimes capitalization that LSPs have responded earnestly to the issues that bother them, thus, it represents important input from them:

1. Vendors should have a clear understanding of what they DO BEST at the time they are selling their worth; assess your talent (Operational - Managerial - Sales - Accounting/Payroll) and set GOALS for each department and review these goals (really review) these goals every month; HIRE GOOD PEOPLE: hungry, optimistic, creative, "I will do whatever it takes to get the job done” and have
   a clear understanding of what it means to excel as a TEAM; have clear GOALS defined that can be easily explained to customers in less than 10 minutes that RESONATE; decide what is important in the market place TODAY – what clients need to solve their problems TODAY and what their problems
   ARE; make a decision that you will or will NOT be willing to invest in the TECHNICAL INFRASTRUCTURE to offer your clients; hire managers that have "PERSONAL INNER POWER" and believe in themselves and KNOW how to get the best out of people an know how to identify the "PERSONAL POWER" in others; finally, hire people that like the business, are passionate about what we are trying to accomplish and ARE WILLING TO again "DO WHATEVER IT TAKES."
2. It's very frustrating for me to see a vendor wear down and drop the ball instead
   of riding out the wave with me until the case is put to bed. PLEASE hire
   GOOD TALENT that's willing to work any hours of the day since large law firms
   have 24hr needs (especially here in New York City). First thing I would do if I
   ran a vendor shop is to replace all of my "9-5 minded" employees with true
   soldiers;
3. In complete disagreement with the items 1 and 2 above: highly skilled people are hard to find; when you find them they often have professional development
   activities and/or a family that's just as important as 24 hr on-call; if you have employees who are married to your firm they will have a hard time keeping up with latest trends and tend to "burn-out" quicker because they're always "processing" and never see the light of day; if the vendor is lucky to find some person with no life that's willing to work at its beacon call, the salary they want for that far out weighs the benefits of hiring them to begin with; with great leadership, communication and team work these obstacles can be avoided to begin with – and then no one ever needs to bear the weight of a project(s) on his shoulders alone and everyone can have a life and a great professional career;
4. In disagreement with the item 3 above, remember that "I'm sorry your Honor, but my vendor has a life" doesn't go over very well when explaining why deadlines were missed. Any vendor who can't support a 24/7 solution is probably in the wrong business. You will always have the 2:00 am request that is needed by 7:00 am and the vendors who can support this will always win out in the end;
   
5. If the vendor can't meet a deadline, tell the law firm upfront. There may be a court order in place subjecting the firm to sanctions, malpractice, etc.;
6. Vendor point of view again: if you want the 24/7 service, you should be ready to pay at the price level required for it.
   

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).

litsupport summary for the week ending on 10/19/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. What litigation support professionals (LSP) see as the best way(s) for a vendor to make first contact and follow up?
A. Not strictly a technical question, but one that inspired discussion:

1. LSPs are very busy and have no time to talk to vendors. When they need information, they get it from the Internet. Therefore, LSPs likely won't see vendors until they are in need of specific information, if they are an old friend of vendor, if you have previous employment ties or ties through other organizations. Attending or sponsoring CLE is one possible way;
2. If you want to have success, be honest about your abilities, provide exceptional service, both before and after the "sale," and do business with the clients like you are the client. Spend more time listening to them about what they need, not what you are trying to sell them;
3. Give the option of dealing directly with a tech and bypassing the salesman;
4. Be honest. If you can't do something, just say so. If you can't do something and tell the LSP so, but also tell that you know who can do it, the LSP will be more inclined to take your advice and guidance. Knowing the technical aspects of the project is much more important. You have to be able to "walk the walk." Always take notes during project meetings. Missing information in a project spec. is not a good sign;
5. Send news about products/services/prices by email rather than phone;
6. PLEASE stop spamming attorneys with the same information you've given to LSPs. The attorneys simply forward the information to the team responsible for vetting vendors (LSPs) and vendor looks like attempting to circumvent the process;
7. People were of two minds regarding cookies supplied by vendors;
8. Vendor is a bad term, should be replaced with something nicer.
   

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).

Technology for Lawyers and Paralegals: Book Review - Foundations of Digital Evidence

Electronic evidence presents unique authentication challenges. In this issue we review the latest book on the subject, "Foundations of Digital Evidence" by George L. Paul and add practical suggestions.


"Foundations of Digital Evidence" by George L. Paul, (C) 2008 by ABA, published in July 2008, 450 pages, price: $119.95.


Review

The book covers the philosophy and the history of the Law of Evidence, the Hearsay Rule, and their applicability or failures when the evidence becomes digital. It explains digital objects, treating them as an advanced form of writing, and explains when the "who, when, where, and what" of the digital evidence can be ascertained and the evidence authenticated, leading to the conclusion that in most cases the proper scientific authentication is not possible.

In contrast, as the book shows, the courts today will most likely overrule the admissibility and authenticity objections and allow into evidence the documents which may not be authentic, avoiding dealing with the complicated technical and legal issues, and letting the jury decide the matter as the question of the weight of the evidence. At this point the book gives an advice to the practitioners who understand the current state of the matter to use it for the clients' benefit.

Having ascertained the less than perfect state of the law, the book suggests the changes in the Law of Evidence which would properly reflect the nature of digital evidence. It explains why the digital evidence is, after all, hearsay, but suggests that it should be allowed into evidence not as a business record exception, but as a new "Systems Reliability" exception. The book thus calls for changes in a number of areas. The judges should require more substantive evidence authentication, going beyond trivial showings. The law should be changed to reflect the nature of digital evidence. And the world of business should build the authentication of "who, when, where, and what" into the documents it produces.

Future trends

The last chapters of the book, written by experts in respective areas, cover islands of already existing more stringent "eunomic", that is, "ordered" world. This includes the robust authentication mechanism built into PDF, the capabilities of public/private encryption systems, the specialized eunomia created by a group of mortgage players, the electronic notarization, the arguably better treatment of digital evidence in the five nations of the word (Argentina, France, Germany, Japan, and Russian Federation), and the role of the Vendor in Handling digital evidence.

As Magistrate Judge Facciola writes in the preface to the book, the book and its author are revolutionary, suggesting the new rules of evidence based not on tradition but on how digital information actually comes into creation. While only time will tell if Paul will prevail against the powerful forces arrayed against his approach, in the meanwhile the book serves as remarkable, albeit demanding, intellectual exercise. It makes a most compelling case of the need for the understanding of how computers work and for awareness of the reality that digital information, far from being inherently reliable, can be manipulated, corrupted, and misused.

Summary

The book is thus useful both as guidance for the many forces involved in forming the law, as well as providing the background and the specific legal and technical armory for the practitioners of today.

The author, Mr. George L. Paul, was kind enough to find time, amid his busy schedule of a trial lawyer, to read the review and verify that it does not contain obvious inaccuracies.

This review was written in the lull following hurricane Ike, which left Houston with no power, by the candle light. The quiet and the absence of interruptions allowed for a pleasurable study.

Practical suggestions

As the book convincingly shows, today's courts are more likely than not to admit unreliable evidence, simply because it was published by the computer. The authentication requirements are reduced to trivial showing, so that once a witness testifies that the document is authentic, this testimony is accepted, without requiring that the witnessed be indeed thoroughly familiar with the document in question. The objections that the document lacks proper authentication, may be forged and thus may not be what it purports to be are often overruled. In a recent case printouts of emails from hotmail were admitted into evidence, until a forensics examiner proved that they were fabricated. What is a law practitioner to do in this situation?

As George Paul shows in the chapter entitled "A Day in the Life of the Printed Electronic Document," smart sleuthing can find the forgery. Individual analysis of every detail can be very time-consuming.

However, what if there is no forgery? What if the document could easily been changed, in fact has been changed, and then printed? How can one challenge its authenticity? Just stating that it could have been changed is often not enough. Computer technology is complex, and "could have been" is not convincing in the face of the lack of understanding.

A more convincing way is to demonstrate in front of the court and the jury, how easy it is to forge a document in question. Our previous letter shows how anybody with a limited knowledge of web site authoring can completely change the story on a web site in a minute, then print the new site content looking as polished as the old one. Therefore, the challenge plan involves two steps: (1) find a way to forge the specific digital evidence, (2) rehearse and show an elegant presentation which will convince any layman that he could have forged this evidence with apparent ease. This will lead to the conclusion that the document is either inadmissible, or unauthenticated, or that the evidence it provides carries little weight.


Note: Legal information is not legal advice. Top8 provides information pertaining to business, compliance, and litigation trends and issues for educational and planning purposes. Top8 and its consultants do not provide legal advice. Readers should consult with competent legal counsel.

Top8 offers entire life cycle litigation support, from computer forensics to
eDiscovery, scanning/OCR, document coding, on-demand review, attorney staffing, data hosting, and trial support.

The author gratefully acknowledges the editing help and numerous suggestions of Kelvin Rocquemore, Esq., of Trial Solutions.

The author is also thankful to his colleagues at the litsupport discussion group, whose discussions provide him with much inspiration and knowledge.

litsupport summary for the week ending on 10/12/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. What are the pros and cons of producing emails in MSG format (continued)?
A.
Pro: MSG files are what you want and as a requesting party what you should request. This type of file coupled with a product that will automatically pick up the metadata and allow you to use it to search and review and find stuff along with free text search will save tons of time and money. This is not the case with TIF's of emails;

Con: With regards to delivery of single-page tiffs, that is common place when using a document review tool such as Summation or Concordance. Particular information, including begdoc, enddoc, begattach, endattach is delivered along with the images to allow the lawyers to know the document boundaries and family groupings. A benefit to having an image file is to allow redactions as well. You can't redact a native file in general.

Synthesis: convert native files to tiff, extract the text and metadata and then load the TIFF, native file, metadata and extracted text giving the attorneys everything they might need in one place - thus have the best of both worlds.

Q. Are attorneys entitled to take their work-product when they leave the firm?
A. The answer was summarized by the author of the question, and thus required little editing work. However, it was too valuable to be left out for this reason.

Observations from in-house counsel and staff assert that as a matter of corporate policy attorneys' work-product belongs to the company. Consequently, corporate counsels' offices do not provide departing attorneys copies of the attorneys e-mails and other documents, not even those which relate to personal business or even benefits.

By contrast, observations from private law firms' attorneys and staff take the opposite position: firms normally deliver to departing attorneys "their" work-product and other documents. Naturally, if the client to whom the documents relate request the documents, then the firm must tender the documents. Yet, to protect their own interests as "firm of record," some firms withhold the documents—or at least retain copies of them--until a formal Withdrawal and Substitution order is approved. Yet even absent that client request, in many jurisdictions the work-product belongs to the attorney, not the firm. All this seems to be addressed state-by-state.

As always, interesting complications were identified. Please see the original post for details.

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).

Work of a PI

Steven Rambam is a PI who talks about his work.

litsupport summary for the week ending on 10/05/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. What are the pros and cons and other considerations of native production in the MSG format?
A. Considerations:

1. An .MSG is the native file format for Outlook message files. One MSG file
   equals one message in outlook with its associated content (i.e. attachments);
2. This production is allowed, but one can choose to argue if the agreed upon format was TIFF, which may turn out to be another court battle.
   

Pros of MSG (or EML) v. TIF:

1. Searchability;
2. Inclusion of email metadata, headers, etc.
3. There is no need to convert to TIF and OCR. Just be careful with attachments, however, as they may be encoded and not directly searchable without prior extraction;
4. Attachments and embedded files are seen as the person who created or used would have seen;
5. Ability to inspect email threads, verify time zones, make sure one sees actual email addresses rather than just the names displayed in a print job, get all the names and not just the ones that made it to the print job, have a generally more reliable access to attachments;

Cons

1. Since emails are not in an "e-paper" format like TIF, review may require additional production effort (such as "early assessment" technology products), adding Bates numbers, etc.;
   
2. Emails may come in unsorted folders;
3. The production may not have been QC'd;
4. MSG production may include data that was not intended for production. For example, the parent email was responsive, but the attachments were not;
5. Redactions will not appear on the MSG files;
6. By providing information in MSG format, the associated metadata with
   the files may not be preserved;
7. Attorneys can review documents faster when they are in image form as opposed to native further increasing costs to the client;

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).

litsupport summary for the week ending on 9/28/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. In addition to Kroll, Fios Webcasts and Estrin Legal, what EDD training is there for beginners?
A. Start with http://www.AIIM.org for $150, then continue with their webinars for free; State Bar Associations have EDD webinars; LITWORKS will teach about Concordance, Summation, repositories, processing workflow, real case best practices; Randall Consulting; Jason Park of the MD5 Group.

Q. How to convert a PDF to Word?
A. PDF Converter by Nuance; OmniPage Pro; FineReader; ScanToOffice; Abbyy; full version of Adobe; pdfDocs for a server-based solution; DocsCorp; perhaps editing a pdf will do: tools, advanced editing, touch up text, then highlight document changes.

Q. How to scrub out all metadata, comments, etc. from a PDF file?
A.

1. Be especially careful if the PDF was created from Word, for example, if you use Print to PDF and DO NOT (a) accept all track changes, and (b) scrub the file when printing to PDF, you comments, etc. WILL be able to be retrieved. Therefore, choose File->Print->Adobe in the "Print What:" drop down box "Document only" and under the Adobe Print Properties Menu uncheck the "Add Document Information" to limit the passing of metadata to the post script driver ;
   
2. A surefire way is to convert to tiff or JPG and then to Adobe PDF;
   
3. Microsoft released Office 2003/XP Add-in: Remove Hidden Data;
   
4. This is built in into Office 2007, under MS icon go to Prepare and then Inspect Document, there is an option to remove metadata, then you may use the MS tool called Save As PDF;

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).