By Alicia Penn and Sean Broderick
Members of our team have noticed an uptick in the U.S. Attorneys’ offices use of eDiscovery review platforms such as Everlaw, Relativity, and Ipro Eclipse to produce discovery to defense teams.
If these types of productions do not cause you problems and you can open, search, and review discovery when provided in this way, you can stop here and skip the rest of this post.
However, if you open your discovery and find the text for an email in one spot, the metadata for the email in another spot, and the images associated with the email somewhere else with no way to realistically put them back together, read on, my friend, we are in this together.
First, productions out of review platforms are not always a bad thing—sometimes it’s the preferred way to receive discovery. If the discovery is text-searchable documents like reports, records, excel spreadsheets, etc., and the discovery comes with a load file or a viewer, no problem. Solutions for searching and reviewing across large quantities of documents include dtSearch[1] (an indexing and search program) or putting the discovery back into a review platform.[2] If a viewer is provided, such as in the case of Eclipse, so much the better, that can be a good option for reviewing the discovery.
A reoccurring problem we are seeing is when the U.S. Attorneys’ office uses a discovery review platform to process[3] files that should not go into a review platform. Often processing these files lead to a very large discovery production—think terabytes of data—that is impossible to search and review.
There are three types of files that create significant problems if they are processed through a review database. First are electronic search warrant returns. Two common examples are search warrant returns from Google (for Gmail accounts) and Meta (Facebook accounts). Two other types of files that shouldn’t be put through a review platform are cellphone extractions and computer extractions. The reason for this is that these types of files are packaged in a way that they are best viewed in their original format or in a proprietary player or viewer. When the files are put through a review platform, they lose the structure that you need to see all the bits of one thing (an email, a call), together. You also lose the original file name and folder structure path. This can be helpful information—Title III wiretap files are an excellent example of where that type of information can be vital in the review of the discovery.
How can I tell if my discovery came from a review platform?
If you receive discovery with a folder named VOL001 with the following structure, it is a sure sign that the output came from a database.
It’s like the government gets the ingredients for a cake from their agents. They mix everything together, but don’t bake it according to instructions before they send it to you. Instead, they dehydrate it and send you the dry, inedible puck. You cannot eat it, it will not taste like a cake, and you cannot separate the ingredients back out to properly bake the cake itself.
What can I do to fix this?
The solution is to ask the government to reproduce the discovery (that shouldn’t have been put in the database in the first place, not necessarily the entire production) to you in its original format—in the format they originally received it in from an agency, before they put it through a review platform. For example, when the government receives a search warrant return from Google, usually it is a single large zip file with the contents and metadata associated with the google account. Getting the Google search warrant return as this original large zip file, as opposed to as a part of a review platform production, provides multiple benefits.
Below is an example of a Google Return directory structure:
When you get the Google return in this way, you will be able to view the Google account contents in the way they were meant to be seen—not dispersed amongst different subfolders. Another benefit is that the information from this Google account now lives in a completely separate space from the rest of the discovery and is organized that way.
If you are not sure whether the format you received your discovery fits into this category, let us know! NLST will hop on a Zoom call with you and look at the folder structure, load file, and help you figure it out plus next steps. We can also help you draft language to send to the government asking for the discovery in the format you need it in in order to review and search effectively.
[1] Link to dtSearch blog posts
[2] Commonly used review platforms—Casepoint, Everlaw, Relativity, are mostly the same under the hood, and as long as we have the load file it can go into any review platform.
[3] The term “processing” usually involves formatting eDiscovery so that the native file can be placed into a review platform where it can be viewed, culled, organized, searched, and analyzed. For example, processing a native email container file (a collection of emails) involves extracting individual emails and their attachments, while keeping track of the relationship between the emails and attachments, and converting the files to formats that can be read through a review tool.