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    More than Email: Handling ESI in 2020 and Beyond

    December 20, 2019

    Last month, CDS hosted a panel of eDiscovery experts, Jeff Shapiro (Clifford Chance), Nicki Woodfall (Travers Smith), Clare Longworth (Relativity), Mark Anderson (CDS) and myself, Bill Belt (CDS), to discuss the impact of new data formats in legal data management. (I’ll use “LeDM” to cover data management in legal matters like eDisclosure, eDiscovery, compliance and governance.)   

    Before the first eDiscovery rule changes in 2006, attorneys would geek out over the question, “What is a document?” Today’s question – “What is ESI?” – is even more fun to discuss. More importantly, how do we deal with the explosion of data formats in legal proceedings? Exchange email and unstructured data are old news. Today, we dig deeper into the tools and data formats that people use to communicate – Slack, Teams, Bloomberg – and how to make that data “reasonably usable” to lawyers.

    New data formats are everywhere with Slack users surpassing 12 million and Microsoft Teams surpassing 13 million.  Now more than ever new technologies capture a multitude of data types including video, imagery and audio in digital formats, resulting in yet more data in more formats. Structured data (e.g. table and relational databases) comes in different formats as well. All of this data can be just as important as the “smoking gun” emails and texts we read about in media coverage of high-profile legal proceedings. Slack reports that its users spend on average nine hours per day in the application. These data formats are just as challenging to legal technologists and LeDM as data volumes. 

    Ever heard of an API? Well, that’s the bit that legal technologists really like to talk about. Those are Application Programming Interfaces that allow one application, like Slack, to interface with legal technologies like Relativity. Without it, the data is, as the experts like to say “gobbledygook.” Would you ever ask a witness to authenticate an XML file?  “Witness Smith, please tell the jury what THIS is:” Many trial lawyers understandably feel that XML files lack punch as evidentiary exhibits. 

    But here’s the challenge. Software writers often focus on writing software that does the job it was meant to do, like allow “Teams” or “Slack-ers” to communicate. Allowing the communications to easily migrate to legal technology platforms is not the point of their work. So, when attorneys attempt to access, review and produce this data, they need API’s in order to migrate data from the communication platform to the legal platform and allow attorneys to access it. That’s just for starters – they also need parsers, filters, indexers, search capabilities and a whole host of other cool tools legal technologists like to work with.

    While technologies constantly evolve to meet the demand, legal technologists in LeDM constantly struggle to keep up, just as we strive to keep up with data volumes. Take the example the panel discussed – text messages on mobile devices. Here’s what it looks like right out of the device as a JSON file. Not very compelling:

    We would prefer it look like this, with the emoji’s and GIF’s intact and accessible for review and ultimately disclosure and possible introduction into evidence. Tools such as CDS Convert providing conversion to formats such as the new Relativity Short Message format. Clare Longworth gave us a sneak peek at what Relativity can do for us once the data is converted. Ah, so much nicer! Thank you, Clare.

    According to Jeff Shapiro, all eyes are on the UK Disclosure Pilot.  UK Practice direction 51u Disclosure Pilot (a little light reading for you – Happy Christmas and cheers!) The UK’s Disclosure Pilot ventures into data formats for productions in Section I, paragraph 13.2:

    13.2 Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them. (emphasis added 😊).

    I’m leaving out Jeff’s very helpful summaries, but readers are invited to read the decisions and send me summaries which I am happy to share. 

    Waymo vs Uber (2017)

    Commonwealth v. Fowler (2019) and Little v. Fowler (2019)

    Securities and Exchange Commission v. Sohrab (“Sam”) Sharma and Robert Farkas (2019)

    For now, we legal technologists will try and keep our XML’s and JSON’s out of court. However, if these court decisions are any indication, we cannot guarantee that the courts in the UK or the US will stay out of our XML’s and JSON’s. 

     

    About the Author

    William Wallace Belt, Jr., Esq., Director of Consulting, CDS

    Bill has 25 years of experience as a partner, shareholder and board member of AmLaw 200 law firms, including Williams Mullen where he built one of the first law firm eDiscovery practices. For the last 10 years Bill has participated in and now runs a Corporate-Only Roundtable where corporate eDiscovery teams, judges and industry experts have met to share experiences and discuss emerging challenges and solutions that combine technological and legal solutions.

         wbelt@cdslegal.com