dtSearch Desktop Demonstration Video

dtSearch is a popular search and retrieval program. Here is a brief 12 minute video that demonstrates how to setup a new dtSearch index and how to run searches within an index.

As mentioned in the dtSearch Desktop post, we have been able to obtain a limited number of licenses that will be made available to CJA panel attorneys with current, active cases.  To request a license go to the dtSearch Desktop post and fill out the request form on the bottom.

Note: like most litigation software programs, this program was developed for Windows-based operating systems and does not work with Macintosh operating systems.

 

dtSearch Desktop

Limited licenses of dtSearch Desktop Available for CJA Panel Attorneys

We are pleased to announce that we have been able to obtain a limited number of dtSearch Desktop software licenses for CJA panel attorneys with current, active cases.

dtSearch is a popular search and retrieval program, and it is the search engine utilized in well known computer programs such as Forensic Tool Kit (FTK, a computer forensic tool), CaseMap and Adobe Acrobat Pro.  This type of program is a useful tool to assist legal teams in searching discovery, creating brief banks, and viewing different file types (including non-PDF files) even if you don’t have the associated application.  We have a limited number of licenses available for CJA panel attorneys to use for free (a $200 value).

The program provides great functionality in searching both electronic documents and paper documents that are subsequently scanned and converted to a text searchable format, especially since it can search and retrieve information in many different file types.  dtSearch is a user friendly software program which provides immediate results and utility for even the novice computer user.  As electronic discovery in federal criminal matters continues to grow in volume and in the variety of formats, dtSearch is a useful tool for CJA panel attorneys faced with the daunting task of organizing and searching through their case material.

To obtain the software, please fill out the dtSearch Request Form below. When finished filling out this form, press the “submit” button on the bottom of the form. This will attach your completed form to an email message sent to Assistant National Litigation Support Administrator Kelly Scribner ( kelly_scribner@fd.org ). You will then receive an email with download instructions and the activation code necessary to obtain your free copy of the dtSearch Desktop. Please allow up to 5 business days to process your request.  Each user license can be installed for that user on two machines.

You must have an active appointed case to continue to utilize the license.  If you are no longer on the panel and don’t have an active appointed case, we request you return the license to the National Litigation Support Team (NLST) by contacting Kelly Scribner so the license can be used by other CJA panel attorneys.  Like most litigation software programs, this program was developed for Windows-based operating systems and does not work with Macintosh operating systems.

For technical support or if you have any questions regarding the utilization of dtSearch within your office, please contact either Alex Roberts or Kelly Scribner (members of the NLST) at 510-637-3500, or by email: alex_roberts@fd.org, kelly_scribner@fd.org.  If you want to learn more about dtSearch, go to http://dtsearch.com/.

dtSearch Desktop Request Form:

Adobe Acrobat: “Renderable Text”

When working with PDF documents you may encounter a “renderable text” error message.  This message will sometimes occur when trying to make a scanned paper PDF file text searchable (also know as adding OCR to a document).

error messageDepending on the version of Acrobat you have, the message may read something like:

“Renderable text” is typically text that has been added to an scanned paper image (like a header, footer or bates number), through a non-Acrobat program.  The way this text is encoded into the page can cause Acrobat to disallow additional searchable text (OCR text).

This message can certainly be annoying and it can also be significant as it can limit your ability to run searches.  In Acrobat, you will be unable to add new searchable OCR text, or improve the quality of the existing OCR, until the error is fixed.

If you’ve seen this message before, and have tried to fix the document without success, you are not alone!  We spoken with a number of people over the years who have come up with some creative solutions.  Though we have yet to find “one solution” that will always fix this particular error, here are a number of possible solutions (results will vary depending on the cause of the error):

Solution 1: Obtain a version of the document with OCR.

  • It may seem simplistic, but if you receive documents without searchable OCR, ask for it.  Often the person or organization that gave it to you will want to search the files themselves and may already have a copy that has been OCR’ed.  Even if the documents they give you generate “renderable text” error messages, you will still be able to search any of the existing OCR text within the files.

Solution 2: If the files are from PACER / ECF, download a new copy.

  • The default download settings in PACER / ECF will add “purple” headers with the case number (which will cause a “renderable text” error message).  If you can find the document again in PACER / ECF, download it with the header option turned off.

Solution 3: Run “Add Tags to Document” (available in Acrobat Pro).
accessibility menu

  • If you have Acrobat Pro installed there is a special “Accessibility” menu where you can run “Add Tags to Document”.  For certain PDF’s, running this option will clear up the issue and allow the document OCR to be run.

Solution 4: Print the document to PDF (available in Acrobat Standard and Acrobat Pro).

  • If you have Acrobat installed (Standard or Pro) you’ll probably also have access to an “Acrobat PDF” virtual printer.  By printing the document to this virtual printer, the new PDF that is created will often avoid having the renderable text issue.

Solution 5: “Sanitize” the document then rerun OCR (available in Acrobat Pro).

  • From the “Protection” menu run “Sanitize Document”.  This will remove all of the document metadata including some of the rendered text that might be causing the error.
  • Re-run the OCR process.

Solution 6: Convert to TIFF files and back, and then re-run OCR (available in Acrobat Standard and Acrobat Pro).

  • Open the PDF document in Acrobat and choose “File > Save As“.
  • In the “Save As” dialog box, choose TIFF (*.tif, *.tiff) from the Save As Type (Windows) or Format (Mac OS) pop-up menu. Specify a location, and then click Save.  Acrobat saves each page of the PDF document as a separate, sequentially numbered TIFF file.
  • Combine the single pages back into a multipage document and re-run the OCR process.

Solution 7: Convert to XPS file format and back, and then re-run OCR.

  • If your computer has the “XPS” virtual printer installed (it comes with many version of MS Office) then print the file using the “Microsoft XPS Document Writer” printer.
    • The XPS printer will ask you to save the file.
    • Convert the saved XPS file to PDF.
    • Re-run the OCR process on the new PDF.

Solution 8: Try running the OCR using a different program.

Adobe Acrobat Training Videos: Searching Fundamentals

Previous video – Text Recognition

Adobe Acrobat Pro is one of the most popular computer software programs on the market for FDO and CJA panel attorneys.  Since so much of the discovery we currently receive in criminal cases is provided in paper or scanned paper format, Acrobat Pro is an excellent tool to help you to better organize and review it.

In our team’s continued efforts to providing resource to CJA panel attorneys and FDO staff, we are creating a series of training videos. Each short video will address a specific feature in a computer software program with our first set focused on Adobe Acrobat Pro XI.

Future videos we are developing will also be posted on this blog.  Make sure to check back in or sign up to subscribe to our blog to get notices of new posts by email.

These videos do not take the place of hands-on training sessions where we can get in depth about a variety of software programs and legal strategies for addressing complex cases, but it hopefully will provide you some basic background information that can help you in your cases.

Adobe Acrobat Training Videos: Text Recognition

Next Video – Searching Fundamentals

Adobe Acrobat Pro is one of the most popular computer software programs on the market for FDO and CJA panel attorneys.  Since so much of the discovery we currently receive in criminal cases is provided in paper or scanned paper format, Acrobat Pro is an excellent tool to help you to better organize and review it.

In our team’s continued efforts to providing resource to CJA panel attorneys and FDO staff, we are creating a series of training videos. Each short video will address a specific feature in a computer software program with our first set focused on Adobe Acrobat Pro XI.

These videos do not take the place of hands-on training sessions where we can get in depth about a variety of software programs and legal strategies for addressing complex cases, but it hopefully will provide you some basic background information that can help you in your cases.

The first video (created by Kelly Scribner and Alex Roberts) gives key information to consider when using OCR text recognition with Adobe Acrobat Pro for scanned paper. Though much has been written about the incredible functionality available with Adobe Acrobat Pro, this short seven minute demonstration focuses on points that we think are most important for you to consider when using OCR in Acrobat Pro.

Future videos we are developing will also be posted on this blog.  Make sure to check back in or sign up to subscribe to our blog to get notices of new posts by email.

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So you think you don’t need tech?

Editor’s Note: Penny Marshall is currently in private practice, focusing on Law and Technology.  Previously she was the Federal Defender for the Federal Public Defender Office for the District of Delaware.  Her practice has also included the federal and local level in the District of Columbia and a year and a half stint in the state of Georgia.  She has served as President of the Association of Federal Defenders and Chair of the Third Circuit Lawyers Advisory Committee.  In addition, she is an adjunct faculty member at Widener Law School and has served as guest faculty at both Harvard Law School and Benjamin Cardoza School of Law. 

Imagine that the government has provided you with 50 DVD’s, a stack of paper amounting to more than a 100,000 documents, an ample number of CD’s and a list several hundred witnesses.  If you instinctively start to prepare by hiring enough paralegals to print out all of documents on the DVD’s, put them all in manila folders, and then hope that you or your smart energetic personnel will remember, in the middle of cross-examination, exactly where a particular impeaching statement is located, then this blog is certainly for you.

Unfrozen Caveman Lawyer

Even in the less complex cases, there is increasing reliance by prosecutors on digital discovery rather than forwarding a stack of reports and pictures.  And certainly the video and audio of our clients providing visual and audio support for the government case will be represented in a digital fashion.

In the new technological age more and more the government is able to “over paper” a case by putting any and all documents on electronic media and challenge YOU to find what is truly relevant.  More and more the government is following the way of our civil counterparts, who have long used technology as a way to organize and present their case.  We, as defense lawyers are prime to catch up.

At different stages of litigation there are several advantages to the use of technology:

  • Generally, the first advantage is that technology allows all of your information to be stored and organized in a compact easy to find location.  Almost gone are the days of moving numerous boxes from one location to the other to be copied and filed.
  • The next advantage is that the digital approach allows for your documents to be searched, either by looking in the digital file or by a program that blitzes through numerous documents to find one name or one crucial word.  Tiny print, upside down lettering and even handwriting can be deciphered.
  • A third advantage is that technology is a less costly way of presenting evidence.  For example: compare for example a FBI model versus using a computer program to reconstruct a crime scene.  Also think of the flexibility!
  • Fourth, technology organization requires you to focus on your case in advance. Rather than place the paper in an accordion file and bringing it out close to trial, electronics says you must consider the parts of the case in advance.

The fact that we are in a visual age cannot be understated.  TV, Text, Laptops, PCs, Phones, Tablets all require us to stare at electronic screens.  Each of these compete for our attention by making more and more exciting bells and whistles.  Check out the lines in front of an Apple store once a new “iDevice” is revealed.

Lining up for new technology

Even though jury duty is a diversion from the normal life for our citizenry, many jurors are regular consumers who expect theatrics in the courtroom. I must admit that, at first, I went kicking and screaming that I was not fully comfortable with tech in the courtroom, but having tried complex cases where it was an absolute necessity and experienced the impact of it in even the more modest case, I am an absolute convert. Think about it, even if you are one of the great lawyers of the day, jurors may tire of your voice in a long case with significant documents, especially if you are asking the Court’s indulgence to find your trial evidence!!

Important 11th Circuit decision regarding compelling of unencrypted data

Editor’s Note: Justin Murphy is a counsel at Crowell & Moring’s Washington, D.C. office, where he practices in the White Collar & Regulatory Enforcement Group and E-Discovery and Information Management Group. Justin’s practice focuses on SEC enforcement, white collar criminal matters, e-discovery matters relating to internal and government investigations, and related civil litigation. He has represented clients in both federal and state criminal proceedings, including state trial panel work in Maryland. Justin has a wealth of expertise in electronic discovery issues in government investigations and criminal litigation, having both written and presented on the subject. In this blog entry, Justin discusses United States v. Doe, a big win for AFPD Chet Kaufman of the Florida Northern Federal Public Defender Office.

Appeals Court Finds Encrypted Data Beyond Reach of Government Investigators

by: Justin P. Murphy, Counsel, Crowell & Moring LLP

In an important decision that could have significant implications for government enforcement, the Eleventh Circuit ruled that a suspect could not be required to decrypt his computer hard drives because it would implicate his Fifth Amendment privilege and amount to the suspect’s testifying against himself.

In United States v. Doe, the government seized hard drives that it believed contained child pornography.  Some of the hard drives were encrypted, and the suspect refused to decrypt the devices, invoking his Fifth Amendment right against self-incrimination.  The Eleventh Circuit held that compelling the suspect to decrypt and produce the drives’ contents “would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.”  Moreover, the government could not force a suspect to decrypt and produce the information where it could not identify with “reasonable particularity” the existence of certain files, noting that an “act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s possession or control, or are authentic.”  The court also rejected the government’s attempt to immunize production of the drives’ contents because the government acknowledged that “it would use the contents of the unencrypted drives against” the suspect. 

This decision appears to limit government investigators’ ability to compel an individual to reveal the contents of devices encrypted with passwords or codes in a criminal investigation based only on government speculation as to what data may be contained in certain files.  Although a corporation or partnership does not enjoy Fifth Amendment protection, individuals and sole proprietorships do, and this decision could have a significant impact on small businesses and individuals who work in highly regulated industries including health care, government contracting, energy, chemicals, and others that may face government scrutiny. 

For a copy of the decision, please click here.

Recommendations for ESI Discovery in Federal Criminal Cases

The Administrative Office/Department of Justice Joint Working Group on Electronic Technology (JETWG) has announced the development of a recommended ESI protocol for use in federal criminal cases. Entitled “Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases“, it is the product of a collaborative effort between representatives from the Defender Services program and DOJ and it has DOJ leadership’s full support.

The primary purpose of the ESI protocol is to facilitate more predictable, cost-effective, and efficient management of electronic discovery and a reduction in the number of disputes relating to ESI. What this means for federal defenders and the CJA panel is that there is now a mechanism, through a meet and confer process, to address problems a receiving party might have with an ESI production early in a case, and to discuss the form of the discovery that they receive. The participants on both sides of JETWG are intimately familiar with the day-to-day challenges attorneys face in criminal cases, and the protocol reflects a pragmatic approach to the problems both prosecutors and defense attorneys face when dealing with electronic discovery.

The protocols were negotiated and drafted over an 18-month period by JETWG which has representatives from the Federal Defender Offices, CJA Panel, Office of Defender Services, and DOJ, with liaisons from the United States Judiciary. Andrew Goldsmith, the DOJ National Criminal Discovery Coordinator, and I (Sean Broderick) serve as co-chairs. Donna Elm, Federal Public Defender for the Middle District of Florida, Doug Mitchell, CJA Panel Attorney District Representative for the District of Nevada, Bob Burke, Chief of the Training Branch for Office of Defender Services, and Judy Mroczka, Chief of the Legal and Policy Branch for Office of Defender Services round out the membership on the Defender Services side of the joint working group.

The ESI protocol was directly impacted by input provided by FDO and CJA panel attorneys, FDO technology staff, paralegals, investigators in the field. In addition, we received comments and input on draft versions of the Recommendations from different working groups compromised of Federal Defenders and CJA panel representatives (just as DOJ did on their side).

The Recommendations consist of four parts:

  1. an Introduction containing underlying principles, with hyperlinks to related recommendations and strategies; 
  2. the Recommendations themselves; 
  3. Strategies and Commentary that address technical and logistical issues in more detail and provide specific advice on discovery exchange challenges; and 
  4. an ESI Discovery Production Checklist.

In general, the agreement is designed to encourage early discussion of electronic discovery issues through “meet and confers,” the exchange of data in industry standard or reasonably useable formats, notice to the court of potential discovery issues, and resolution of disputes without court involvement where possible.

We are excited about this announcement. Although almost all information is now created and stored electronically, the discovery provisions of the Federal Rules of Criminal Procedure are largely silent on this issue. At the same time there is a void because criminal cases, just like civil cases, are impacted by our shift from a paper to a digital-based society. We believe that this is an important step towards addressing the ESI challenges that people can face in a federal criminal case, if not now, certainly in the future.

We expect to continue the collaborative process with DOJ, and look forward to an ongoing dialogue with people in the field who are dealing with electronic discovery.

PDF link: Recommendations for Electronically Stored Information (ESI) Discovery Production in Federal Criminal Cases

Posted in ESI

DeMystifying De-NIST

With ever rising volumes of discovery data, increasingly legal teams are looking for solutions that can assist them manage the amount of data they need to review.  In circumstances where significant amounts of ESI (Electronically Stored Information) and forensic images of hard drives are involved, one common method is to “De-NIST” discovery data sets.  “De-NIST”ing can be a significant time and money saver and an important part of the discovery review process.

So what the heck does “De-NIST” mean?  

NIST is the acronym for the National Institute of Standards and Technology (website www.nsrl.nist.gov).  One of NIST’s projects is the National Software Reference Library.  This project is designed to identify and collect software from various sources and create a Reference Data Set (RDS).  The RDS is a collection of digital signatures of known, traceable software applications. 

A digital signature is like a digital fingerprint (it is also commonly referred to as a hash value).  In theory, every file has a unique hash value.  If two files have the same hash value they are considered duplicates.  

Most software applications are comprised of multiple files.  For example: when Adobe Acrobat Reader is installed there are hundreds of standard files copied to a computer’s hard drive.   All of these standard install files are the same (i.e., they have identical hash values) no matter what computer they reside on.  A typical computer contains hundreds of software applications.  The files associated with running these applications are not user generated and hold little evidentiary value for litigation purposes.  The NIST list is a database that contains over 28 Million of these file signatures.

De-NIST”ing is the process of identifying these files so that a decision can be made if they should be set aside or removed from a discovery database.  The NIST list is compared to the file signatures of the data sets within the discovery.  Any file that has a signature that matches one in the NIST list can be “De-NIST”ed (identified or removed) from the collection. 

While many legal review teams expect the De-NIST process to get rid of every application or system file within a data collection it is important to note that the NIST list does not contain every single system file.  Though it may not remove all of the system files, it can significantly reduce the dataset, especially when working with with copies of hard drive images. 

When presented with an overwhelming river of information, trying to find relevant information can feel like you’re panning for gold.  De-NIST’ing can help to identify or get rid of the much of the water, stones and muck and leave you with a much more manageable pan.   

Posted in ESI

Scanned Paper (part IV)

Objective Coding:

“Who, What, When” will help you figure out “Where and How”

One definition of the word objective I found online is:

“uninfluenced by emotions or personal prejudices; presented factually”. 

This is accurate when it comes to the objective coding of documents in the not so objective world of litigation.  While you may believe that having OCR for .pdfs or associated text for .tiffs gives you the searching capabilities that you need, having documents objectively coded will really allow you to refine those searches and hone in on the specific documents you are looking for. 

OCR and associated text allows you to search for keywords through the entire text of the document, whereas objective coding allows you to choose specific fields where the name, word or date you are looking for exists.  You also are allowed to create a list of document types (i.e. Email, Financial Record, Police Report, Memo, etc.) specific to your case so that you can identify a specific subset of documents for review.  You can also combine information found in different fields to even further refine your search. 

The standard objective coding fields are:

  1. Author
  2. Recipient
  3. Copyee
  4. Date
  5. Title
  6. Document Type

________________________________________________________________________

For example:

Your search results for a document authored by “John Smith” on “January 1, 2010” would differ tremendously depending on whether you used OCR or objective coding to run your search. 

If you only used OCR for your search, you would find every single document that not only was authored by “John Smith” but in which his name appears.  You would also retrieve every document in which “January 1, 2010″ appears, even if it was simply mentioned in the body of the text.  This could result in an unwieldy subset of documents and not really help you identify the particular subset of documents you are looking for. 

However, if your documents were objectively coded, you could simply search in the Author field for “John Smith” and in the Date field for “January 1, 2010” and find any documents that specifically fit that criteria. 

________________________________________________________________________

If you don’t get objective coding with your discovery, ask for it.  Objective coding contains objective information – facts, not opinions or ideas about a document.  Opposing counsel would not be revealing any information about their case, about their case strategy or about the strengths and weaknesses of the discovery by sharing any objective coding they have done.  No privilege would be breached and no attorney work product would be turned over.  Rather, a win-win situation is created when the cost of capturing factual information that will equally help both parties organize and review the discovery is shared. 

Up next:

Part V: Running a Document Inventory