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April 17, 2010

Latin: To Bring With You Under Penalty of Punishment

Paper I like being deposed, but then, I've always liked taking tests.  Weirdo!  Lawyers are notoriously bad witnesses, and I'm probably no exception, but I really like the mental exercise of defending my opinions.  After so many years eliciting testimony, it's much more interesting to play from the hot seat.  Yesterday's deposition offered some lessons in e-discovery worth sharing.

No lawyer worth his or her salt will notice a deposition without appending a subpoena duces tecum demanding the witness bring documents.  The SDT served on me focused on e-mail and telephone communications, so the challenge was how best to produce e-mail threads and call records to a party who'd merely specified that ESI be produced in a "reasonable manner." 

I use Gmail for messaging, so all responsive messages were already threaded--a big timesaver in collecting responsive material and an aid to preserving continuity and clarity.  But Gmail doesn't support a simple "Save As" feature enabling a user to generate a generic single message format or PST.  Of course, I could have downloaded all my messages to Outlook then saved single messages as .eml or .msg files; but, as there would be upwards of 30,000 messages to download, that approach was a non-starter.

I wanted to preserve appearance and full-text searchability.  I also had to deal with attachments in about half of the responsive threads, some of which would be in formats (like forensic images) that most lawyers aren't going to ken.

Going in, I don't know how many items will prove responsive to searches; so, it's not a simple matter to simply print the items to paper as I go (assuming they were in formats that could be printed).  Little guys like me don't have the high speed, low cost printing resources of large firms.  In-house printing of three sets comprising 3,000 to 10,000 pages would be costly, burdensome and time-consuming.  Confidentiality concerns made outside printing undesirable.  Plus, I view it as essential to preserve electronic searchability for material derived from electronic sources.  If I show up with a three foot stack of paper, a savvy lawyer is going to say, "Whoa, Nellie.  Paper isn't a reasonable production format for voluminous electronic records."  [Texas lawyers say "Whoa, Nellie," unless we rode in to the deposition on a horse of another name.  Hence, the frequent references by some to "and the horse you rode in on"].

On the other hand, if I smugly show up with a bunch of native formats--which is my privilege--I'm just making life hard for the party that noticed the deposition.  That's not right either (see, e.g., "and the horse you rode in" supra).

So, I opted to produce everything as a PDF Portfolio.  A PDF Portfolio is a collection of multiple files in varying formats that are housed in a single, viewable and searchable container.  Anything that can't be handled as a PDF is included in its native format and indexed as feasible for instant searching.  A PDF Portfolio has most of the benefits of paper but handles all forms of ESI and is easier to search and produce. 

While I need Adobe Acrobat 8 or 9 to create a Portfolio (called a "Package" in Acrobat 8), the recipient just needs the ubiquitous, free Acrobat Reader application to open, view and search it.  A PDF Portfolio supports a simple browser-style viewer format in Acrobat Reader, so the documents are very quick to peruse.

Here, I need to reiterate the key difference between Adobe Acrobat products that just seems to stymie so many.  Adobe gives away a program called Adobe Reader.  It reads PDF formats, but it doesn't create them.  Repeat: it doesn't create PDFs or Portfolios.  It just reads them.  It's called "Reader."  Why? Because IT DOESN'T CREATE PDFs.  It's free, so enjoy what it does, which is read PDFs.  Only.

Adobe sells products called Acrobat (so named because you have to perform gymnastics to get people to understand that the Reader product just reads PDFs).  The Acrobat products create PDFs, including Portfolios/Packages from Version 8 forward.  This is how Adobe makes money: free reader, $300 writer.

To create my Portfolio, I followed a three step process.  First, I changed my default printer to the Adobe PDF Printer that comes with Acrobat, then I "printed" every responsive message in Gmail to a PDF format, assigning a unique name to each such file stored in a single production folder.  The unique naming of each PDF "printout" was a hassle necessitated by Gmail's failure to assign different names to each item in printing, but it wasn't a huge hassle, and I used it as an opportunity to give easy shorthand identifiers to each item.  You could use Bates numbers or hash values.

Next, I saved each attachment in its native format to the same folder.  

Finally, I selected everything in my production folder and had Adobe Acrobat assemble them into a Portfolio.  To dress things up, I even added my logo to the cover page.  Acrobat built and embedded a full-text index of contents.  All of this step only took a couple of minutes.

Now, I burned CDs for all counsel containing the PDF Portfolio and, as a convenience, the complete contents of the production folder.

I delivered this to counsel at deposition, proud to have made ESI easily accessible, viewable and searchable at low-cost to all.  And what do you suppose happened?

Right.  They looked at the disk as though I'd handed them a snake and sent it out to be printed while we all twiddled our thumbs with meters running. Sigh.

Lesson: If you're serving a subpoena duces tecum for ESI, take a page from the Federal Rules and specify the form or forms you seek.  If you're after costly cumbersome conversion to paper, address who will pay for it.  If you need production before the deposition, ask for it.  If you're not competent or equipped to handle the evidence production you demanded when it's produced at the time and place you demanded it, then have the courtesy and professionalism to let that be known before you waste everyone's time and every client's money.

For more about Acrobat Portfolios and other great Acrobat tips for lawyers, check out Rick Borstein's terrific blog, "Acrobat for Legal Professionals."

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Comments

You are more patient than I. Printing every responsive message manually from Gmail? Ugh. Spend the 50 bucks a year for Google Apps Premiere and enable the Postini archive. Even if you want to be nice and provide them the messages in PDF format, you can batch PDF the PST or MBOX in Acrobat or another PDF tool, which will still save a lot of time over manually printing each message from Gmail.

You also assumed the additional task of manually downloading the attachments as printing from Gmail will just show a dead icon representing the attachment. Your method doesn't retain the parent-child relationship. If you come across a printed message that shows an attachment, you have to look for it in the folder based on the name. I'm not sure how you dealt with attachments with the same name. I'm assuming that this was not an issue in this matter.

Also, by default, Gmail will hide quoted text. If you don't expand that text before printing out, there will be a "quoted text hidden" message, which you can't expand in the PDF. Producing in a format that hides body content doesn't strike me as particularly reasonable. Manually expanding all hidden text in a thread before manually printing seems like a waste of time.

Even if you are not using the Postini archive, using a desktop client to download to PST or MBOX still seems like a it would save you a lot of time.

It is too bad that Gmail doesn't allow you to export to PDF files directly, like you can with Google Docs. One neat feature of Google Docs is that you can select a large number of files, in mixed formats, and then have them downloaded in either native format or converted to PDF. If they can do it with Google Docs, they should be able to do it with Gmail.

Personally, I'd prefer PST or MBOX files (not EML) than a bunch of individual PDF files (just as inconvenient as a bunch of EML files) and certainly over a giant PDF. Which, of course, illustrates your lesson: specify the form of production. Otherwise you may get a large annoying Adobe Acrobat Portfolio! ;-)

Paulceaston:

You make excellent points, especially about the issue of broken links and the need to uniquely increment when saving identically-named attachments (with the attendant confusion that creates respecting parent-child relationships).

I expanded all threads before "printing" to PDF and, while you're correct about the "hide quoted text" message, I consider it an advantage. The hidden text is merely a reiteration of another message in the same thread that's not hidden, so no information is hidden, only useless repetition. Too, it's a whole lot easier to read done my way.

I'm with you, hands down, in preferring a PST for production. But, if I'd delivered a PST at the deposition, all I was doing was insuring that the other side couldn't deal with it, and that they would be stymied in printing it, too. I was trying to practice the EDD Golden Rule. Remember, these folks couldn't deal with a PDF. How do you think they'd have managed a PST in the field?

To do what you propose, I would have been required to download 8GB of Gmail comprising more than 30,000 messages and tons of attachments, then process same in a review tool (because Outlook's search capabilities suck). That's easy for me to do, but it would have taken a long time to repatriate the data locally. Then, I'd still face the question of form of production and would likely have again settled on PDF.

To be sure, my approach isn't massively scalable, but it worked cheaply, quickly and more reliably than common alternatives. One small step for EDna, if not a giant leap for EDnakind!

Thanks for you thoughtful comments.

Craig,
The only thing I would add is that I hope counsel in that situation would follow our guidelines, which as you know ask counsel to read your article,"Ask and Answer the Right Questions in EDD," [see below]. In addition I would hope they have read the Sedona Cooperation Proclamation which should help them find a "just, speedy and inexpensive" solution to the problem you describe before time or money is wasted.
Dave
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Guidelines for Discovery of Electronically Stored Information (ESI)
5. Duty to meet and confer when requesting ESI from nonparties (Fed. R. Civ. P. 45). Parties issuing requests for ESI from nonparties should attempt to informally meet and confer with the non-party (or counsel, if represented). During this meeting, counsel should discuss the same issues with regard to requests for ESI that they would with opposing counsel as set forth in paragraph 4 above which includes the following:
(f) Format and media. Counsel should attempt to agree on the format and media to be
used in the production of ESI.
As well as:
For a more detailed description of matters that may need to be discussed, see Craig Ball, Ask and Answer the Right Questions in EDD, LAW TECHNOLOGY NEWS, Jan. 4, 2008, accessed on Feb. 1, 2008 at http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1199441131702# and reprinted in these Guidelines with permission at Appendix 1.

To perform either comfortably, you don't need to have to possess the literary sensibility of terrific authors, but you do involve to do particular things, a few of which we will consider it inside approaching paragraphs. Usually, regardless of what I do, I all feel twice of them.

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