A Litigator's Guide to Going Native

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1 A Litigator's Guide to Going Native Pros, Cons and Tips for Native Review and Productions July 13, 2016 Gene Albert CEO Lexbe

2 ediscovery Webinar Series Info and Future Webinars Webinars take place monthly and cover a variety of relevant ediscovery topics. If you have technical issues or questions, please webinars@lexbe.com. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

ediscovery Webinar Series Gene Albert bio CEO of Lexbe LC, a provider of cloud-based litigation processing, review and document management software and ediscovery services Frequent speaker/author on

3 ediscovery Webinar Series Gene Albert bio CEO of Lexbe LC, a provider of cloud-based litigation processing, review and document management software and ediscovery services Frequent speaker/author on ediscovery and legal technology issues Planning Committee Member, Electronic Discovery Institute, State Bar of Texas ediscovery consultant & expert Education MBA, University of Texas JD, Southern Methodist University Gene Albert gene@lexbe.com Connect with Gene on LinkedIN - Pros, Cons & Tips for Native Review & Productions July 13, 2016

4 A Litigator's Guide to Going Native Agenda Controversy Concerning Native Review and Productions Statutory and Case Law Addressing Native Productions Metadata, Privilege Review and Redaction Issues Production Format Options Importance of Properly Drafted ESI Agreement and Orders Controversy Revisited and How Lexbe Handles Practical Take-Aways and Practice Tips - Pros, Cons & Tips for Native Review & Productions July 13, 2016

5 What Are Native Files? Electronic documents have an associated file structure defined by the original creating application. Viewing or searching documents in the native format may require the original application. Compare with the common paginated TIFF format (aka imaged ), designed to retain an image of the document as it would look if printed. The more modern PDF format is similar, but allows color and smaller sized text versions. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

6 Controversy - Arguments for Native Production - Pros, Cons & Tips for Native Review & Productions July 13, 2016

7 Controversy - Arguments Against Native Production - Pros, Cons & Tips for Native Review & Productions July 13, 2016

8 Form of Production - Requirements - FRCP 34(b) If No Agreement - Requires that ESI be provided in a form in which it is ordinarily maintained or a form that is reasonably usable. (E.g., native format) If Specific Request, No Objection - If the requesting party specifies a different form, and the receiving party does not object, the receiving party may be bound to the requested form of production. If Specific Request, With Objection - If the requesting party specifies a different form, the producing party can object and propose its own form. Specifics of ESI formats is the meat of many ESI Agreements or orders. Note: No right under FRCP to have the common TIFF/loadfile, absent an agreement or an unobjected request. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

9 Recent Case Law About Native Productions - Pros, Cons & Tips for Native Review & Productions July 13, 2016

10 What Do We Mean by Metadata? Often unhelpfully defined as data about data. In the ediscovery context it can mean different things: fields for senders, receiver, date sent, number of attachments and identity of attachments. Application file fields of document author, date created, date last modified, and time spent editing. Operating system (e.g., Windows or MAC OS) file information such as date created and date last modified. Change information and edits to certain file types, such as Word revisions and track changes. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

11 Production - Sample DOJ Metadata Requirements - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Problems of Reviewing in MS Outlook Search misses some attachments and file types (Outlook only catches most common attachments and cannot search a nested structure).

12 Problems of Reviewing in MS Outlook Search misses some attachments and file types (Outlook only catches most common attachments and cannot search a nested structure). Hard or impossible to view some attachments. Cannot tag or attachments (e.g., key issues). Cannot share file while working on review (one person at a time). In consolidating for review in a PST, may lose custodian relation. Cannot dedupe within Outlook. No search keyword highlighting, no concept search, stemming, Boolean, or stemming options. Search is slow on large PSTs, typically much slower than using a modern litigation database. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

13 Nesting Issues with & Attachments Unusual file types not installed on reviewers computers Deep nesting makes coding and tracking difficult Some files not OCRed (searchable) Nesting levels 2 3 Single & attachments 1 - Pros, Cons & Tips for Native Review & Productions July 13, 2016

14 Problems with Imaging Actual Excel spreadsheet expansion example - Pros, Cons & Tips for Native Review & Productions July 13, 2016

15 Form of Production - Native Files What is it? Advantages Saved as designated by the original application used to create it (e.g. a DOC or DOCX file created by Microsoft Word) Most accurate approximation of what custodian saw and used Minimal size expansion All metadata available Disadvantages Need application for all file types Can increase attorney review time if no paginated equivalents Notes Processing still needed Often must produce in addition to other formats Increased privilege issues - Pros, Cons & Tips for Native Review & Productions July 13, 2016

16 Form of Production - Near Natives What is it? Saved as designated by the original application used to create it (e.g. a DOC or DOCX file created by Microsoft Word) Advantages Allows structured databases and specialty applications to be converted to reviewable types (e.g., Excel) Disadvantages Notes Usually needs to be converted by specialists with case subject matter expertise Relatively expensive Usually as needed only Rare/special file types may be reviewed in original application without conversion - Pros, Cons & Tips for Native Review & Productions July 13, 2016

17 Form of Production - PDFs What is it? Natives converted to PDF from native or scanned and OCRed Advantages Familiar and easy to use Does not require review platform Page-level Bates stamping; retains color Size expansion less than images (TIFFs) Disadvantages Some review platforms may not support well A complex format which can present corruption issues downstream in review Notes Different types of PDFs: -Text-Based (converted from native) -Image-only (scanned or rasterized) -Text-under-image (OCR added as text layer) -Acrobat Portfolio (must be extracted in most platforms) - Pros, Cons & Tips for Native Review & Productions July 13, 2016

18 Form of Production - TIFF Images What is it? Natives converted to TIFF-images, usually single-paged; or scanned Advantages Traditional review format (predates PDF) Required for some platforms Robust bit-mapped file type (image-viewer used) Disadvantages Cumbersome--requires separate text files and load file to use Requires review platform to pull together Substantial file expansion from native (3-10X) May lose color, hidden and other data Notes Usually in the form of one image and one text file per page (older text in load file) Document breaks and associated metadata are stored in one or more separate set of load files, which can corrupt - Pros, Cons & Tips for Native Review & Productions July 13, 2016

19 Form of Production - Blended Productions The Lexbe ediscovery Platform uses Blended Productions What is it? Advantages Delivery in multiple formats as needed: Native, PDF and TIFF/text, with multiple load file formats Notes Lessens format discussions/delays Flexible for multiple platforms PDFs available for easy transfer; Natives for processed and linked; TIFFs for review systems that require it (if needed) Versions linked for easy comparison Multiple load files for all major systems Lexbe Multi-Index allows search of native and imaged/ocred version of documents - Pros, Cons & Tips for Native Review & Productions July 13, 2016

20 Form of Production - Load File What is it? Structured text or database type file that references document files and associated metadata and other information, for use in Litigation Review Database Systems May Be Included Document and metadata Document breaks (for single page TIFFs) family associations Map to multiple versions of files (e.g., TIFF, Text, PDF, Native) Formats in Use DAT (Concordance, Ringtail, Relativity) DII (Summation) LFP (ipro) Excel XLSX (Lexbe) Notes Production may include multiple load files formats Can be used in TIFF, PDF and Native productions Some systems can load multiple formats - Pros, Cons & Tips for Native Review & Productions July 13, 2016

21 Form of Production - Lexbe Excel loadfile Load File in Excel (Lexbe) Format - Pros, Cons & Tips for Native Review & Productions July 13, 2016

22 Form of Production - DAT loadfile details Load File in DAT (Concordance) Format Field Delimiter þbegdocþþenddocþþbegattþþendattþþattachmentþþparentidþþrecordtypeþþdatesentþþtimesentþþ DATERECEIVEDþþTIMERECEIVEDþþFROMþþTOþþCCþþBCCþþSUBJECTþþDATECREATEDþþTIMECREATEDþþDATEMO DIFIEDþþTIMEMODIFIEDþþFILENAMEþþFILEEXTENSIONþþSOURCEFILEPATHþþPAGESþþVOLUMEþþORIGINALSPATH þþtextpathþþpdfpathþþenron þþENRON þþþþþþþþþþe þþ05/26/2000þþ10:19:00 AMþþ05/26/2000þþ10:19:00 AMþþJohn J LavoratoþþJohn Zufferli{John Zufferli}þþþþþþMolson adþþþþþþþþþþ :19: 00AM - Molson adþþ.msgþþjohn_lavorato_000_1_16\top of Outlook data file\lavorato-j\john_lavorato_jun2001\notes Folders\All documents\ :19:00AM - Molson ad.msgþþ1þþvol01þþ\originals\0001\enron msgþþ\text\0001\enron txtþþ\PDF\0001\ENRON pdfþþENRON þþENRON þþENRON þþENRON þþþþENRON þþAttachment þþþþþþþþþþþþþþþþþþþþþþþþþþþþmolson-canadian-i-am.movþþ. movþþjohn_lavorato_000_1_16\top of Outlook data file\lavorato-j\john_lavorato_jun2001\notes Folders\All documents\ :19:00AM - Molson ad.msg\molson-canadian-i-am.mov.1þþ1þþvol01þþ\originals\0001\enron movþþ\text\0001\enron txtþþ\PDF\0001\ENRON pdfþþENRON þþENRON þþþþþþþþþþe - Pros, Cons & Tips for Native Review & Productions July 13, 2016

23 Form of Production - DII loadfile details Load File in DII (Summation) Format Field Token Record Token ;Record ENRON ENDDOC# ENRON ENRON tiff ;Record ENRON 1000 ENRON ENDDOC# ENRON ENRON tiff ;Record ENRON ENRON ENDDOC# ENRON ENRON tiff ENRON tiff ENRON tiff ENRON tiff ENRON tiff ENRON tiff ENRON tiff ENRON tiff - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Importance of ESI Agreements & Orders Agreement between parties that governs the who, what, when and how of electronic discovery activities and electronically stored information (ESI) Sets out the

24 Importance of ESI Agreements & Orders Agreement between parties that governs the who, what, when and how of electronic discovery activities and electronically stored information (ESI) Sets out the expectations for both sides and is binding With or without Court/magistrate participation Called many things, including an agreement, ESI order, Rule 26 (f) order, pretrial order, protocol, requirements or stipulation Often includes details of production format including native file formats - Pros, Cons & Tips for Native Review & Productions July 13, 2016

25 Native Delivery Provisions in ESI Orders Lexbe provides a sample ESI Order/Agreement, available on request and from our website. It includes several options on handling Native Files. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

26 Revisited - Arguments for Native Production - Pros, Cons & Tips for Native Review & Productions July 13, 2016

27 Revisited - Arguments Against Native Production - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Easily View Multiple Doc Versions - LEXBE Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016 Hits - Highlighted from search Original - Native

28 Easily View Multiple Doc Versions - LEXBE Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016 Hits - Highlighted from search Original - Native if available HTML - Extracted text from Native Page - One page at a time PDF - Viewing and access Text - OCR of images Redacted - Confidentiality Translated - For foreign Annotated - For depos

29 Solutions - Multi-Indexing Indexing - LEXBE With a Dual-Index approach the search engine indexes both text extracted from Native files ( , attachments, spreadsheets) and imaged file OCR text (TIFF, JPG or PDF). Most comprehensive approach minimizes potential for lost and unsearchable data, and finds more privileged documents. Benefits of Multi-Index Approach Captures Embedded Text Captures Text Excluded From Print Captures Hidden Text Imaged/OCR Yes No No Native Extraction No Yes Yes Multi-Index Yes Yes Yes Index Method Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Solutions - Search Options - LEXBE Search Requirements Basics

-Concept -Fuzzy and stemming -Boolean -Keyword highlighting Best

natives/paginated -Translations integrated Litigator's Guide to

30 Solutions - Search Options - LEXBE Search Requirements Basics -Accurate -Fully indexed -Easy to Use Better -Many search options -Concept -Fuzzy and stemming -Boolean -Keyword highlighting Best -Very fast (returns in seconds on large cases) -Multi indexing of natives/paginated -Translations integrated Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016

-Code Many at Once -Multi-Doc Edit -From Search/Filters Litigator's Guide

31 Expanded Native Files Allow Specific Coding - LEXBE Coding in Doc Viewer -Code 1 Doc at time -See families -Auto-code families Mass Coding -Code Many at Once -Multi-Doc Edit -From Search/Filters Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016

-Privilege and Work Product coding used -Privilege log automatically generated for

32 Automatic Privilege Logging from Metadata - LEXBE Privilege Log Auto-Creation -Metadata extracted from natives - date/time, sender, receiver, subject -Privilege and Work Product coding used -Privilege log automatically generated for review Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Examples: Separately scanned documents; multiple versions of a Word document that are slightly different due to minor edits or reformatting.

33 Near Duplicate Detection & Grouping What is It? Near Duplicate Detection, or NearDupe, technology automatically recognizes similar documents within an ediscovery document collection. Examples: Separately scanned documents; multiple versions of a Word document that are slightly different due to minor edits or reformatting. An original document and one with handwritten notes on it; s continue a conversational chain or thread. Unstructured Documents NearDupe Groupings Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Near Duplicate Detection & Grouping - LEXBE Example Benefits Follow the trail from one privileged document to others Identify privileged documents that might otherwise be

34 Near Duplicate Detection & Grouping - LEXBE Example Benefits Follow the trail from one privileged document to others Identify privileged documents that might otherwise be missed Litigator's Guide to "Going Native" - Pros, Cons & Tips for Native Review & Productions July 13, 2016 Similar versions of a Privileged Document are shown in the Document Viewer

35 Practice Tips - General Issues Production format Issues are best handled in properly drafted ESI orders and agreements. Consider what review technology and system you and your opposition will be using. That will drive production format issues. Follow FRCP 34 in production results and responses. The production format should be specified. Utilize Rule 26 (f) conferences to identify and address issues involving native files. Consider how databases and other file types that cannot be produced natively will be handled. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

36 Practice Tips - When Requesting Natives If you want native files, request specifically in your RFP. Specify needed metadata in your RFP and ESI order, don t rely only on getting natives. Some metadata resides at the OS level and must be included in a loadfile. Determine what native file types are needed and specify. Will your review platform fully search natives and embedded files? How will files that would benefit from OCR be handled? - Pros, Cons & Tips for Native Review & Productions July 13, 2016

37 Practice Tips - When Producing Natives Make sure your review system supports full indexing of the native files, including OCR of image files and embedded images. Institute a quality control procedure for how redacted files are handled to ensure the native file is redacted, and also parent and container files (e.g., MSG and PST container files, and Zip, RAR and other archive files) are also pulled from the production. Ensure the quality control procedure includes how privileged and work product files are handled with the redacted files. Consider using NearDupe (deduplication or near deduplication) technology to additionally QC your privilege and work-product. Consider a claw-back agreement for privilege errors. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

38 Thank You Thank You For Attending We ll be making the following available to webinar attendees: A recorded streaming version MP3 podcast PDF Please let us know if you have any questions or comments about this webinar or suggestions for future topics. This webinar is part of the Lexbe ediscovery Webinar Series. Presenter: Gene Albert gene@lexbe.com (512) Moderator: Christian Detrude cdetrude@lexbe.com (512) Webinar Questions Contact Lexbe: : webinars@lexbe.com sales@lexbe.com Follow us on LinkedIN - Pros, Cons & Tips for Native Review & Productions July 13, 2016

39 Thank You What Attendees are Saying: "Excellent presentation! One of the best webinars I have attended!" Time well spent. "Great in terms of content and presentation. Thanks!" "Excellent and informative piece!" For notices of future live and on-demand webinars as part of this series please us at webinars@lexbe.com or Follow us on LinkedIN. - Pros, Cons & Tips for Native Review & Productions July 13, 2016

Lexbe ediscovery Platform Learn More About Lexbe The Lexbe ediscovery Platform is our cloud-based processing,

Designed for Attorneys/legal staff to be DIY and easy to use with no users fees or case fees.

Learn about our high-speed/high-capacity ediscovery services, and expert professional services.

Cost-effective ediscovery Lexbe cost advantages, SaaS convenience and search capabilities appeal to many small

40 Lexbe ediscovery Platform Learn More About Lexbe The Lexbe ediscovery Platform is our cloud-based processing, review and production tool. Designed for Attorneys/legal staff to be DIY and easy to use with no users fees or case fees. Free standard loading with annual plans. Learn about our high-speed/high-capacity ediscovery services, and expert professional services. Request a personalized demo and expert consultation today! Cost-effective ediscovery Lexbe cost advantages, SaaS convenience and search capabilities appeal to many small firms. Secure, easy-to-use and a great review tool for consideration Because of the Lexbe software, the entire playing field has been leveled for my firm. - Pros, Cons & Tips for Native Review & Productions July 13, 2016 A powerful litigation document management service Lexbe is the easiest ediscovery software I have ever used. Lexbe Sales sales@lexbe.com (800) x22

Top 10 Mistakes to Avoid When Creating Productions

Top 10 Mistakes to Avoid When Creating Productions Steer Clear of Common Pitfalls and Flawlessly Execute Productions October 30, 2014 Gene Albert Principal, Lexbe LC ediscovery Webinar Series Info Takes