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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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

CJA Panel Attorney Software Discounts

There are several vendors who offer discounted rates to CJA panel attorneys for their litigation support software.  Currently, there are discounted rates being offered on:

  • CaseMap Bundle (CaseMap/TimeMap/DocManager)
  • TrialDirector

We hope to continue the national contracts which encourage these deals to be offered to the CJA panel, but considering the ongoing budget limitations all deals are subject to change.

Note: Like many litigation software programs, these programs are developed for Windows based operating systems and do not work with Macintosh operating systems.

Below is a brief description of the software and the current pricing information for these programs:

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CaseMap Bundle (CaseMap/TimeMap/DocManager)

CaseMap and TimeMap are two of the most popular litigation support software programs for FDOs and CJA panel attorneys. CaseMap is a fact management application used to organize, manage, and connect case facts, legal issues, key players, and documents. Because it is a single database, it allows team members to work collaboratively and store important case information in specialized relational spreadsheets for ready access and analysis. Through flexible filtering, CaseMap enables end-users to see how any person, fact, document, or issue relates to other elements in a case. TimeMap is a graphing software used to create visual timelines of case events, assisting judges and jurors in their understanding of the sequence of key events in a case. TimeMap integrates with CaseMap, allowing any record in CaseMap that has a date associated with it to be sent to TimeMap instantly.  DocManager is a CaseMap plug-in that allows users to view highlighted search hits in DocManager’s near-native viewer, and bulk import and view many file formats while still providing Adobe Acrobat integration and functionality that users are accustomed to.

LexisNexis offers CJA panel attorneys the CaseMap / TimeMap / DocManger bundle for a special reduced price of $580.00.  Contact PMsales@lexisnexis.com (email) for assistance and questions.  Make sure to mention that you are a CJA attorney and that you are interested in CaseMap products at the special discounted rate.

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TrialDirector

TrialDirector is one of the most popular electronic courtroom presentation software programs, and FDO and CJA panel attorneys have been using it in trial and evidentiary hearings for many years. TrialDirector allows attorneys to do multimedia presentations in court, including presenting imaged documents, document highlighting, document callout and zooming, cropping, annotating, multiple zoom capabilities, side by side exhibit comparison, playing audio and video, and the playing of synchronized audio/video transcripts. It allows for the importation and organization of case files including exhibits, documents, images, videotaped depositions, deposition transcripts, synchronized deposition transcripts and can be synchronized with document review databases.

inData offers CJA panel attorneys TrialDirector at a 50% discount, currently $397.50, plus a mandatory software maintenance fee of $159, for a total of $556.50 (compared to the regular price of $954 for a license and maintenance). To purchase TrialDirector, contact inData sales directly at 800-828-8292.  Inform them that you are a CJA attorney and that you are interested in the TrialDirector software at the special CJA rate.  There is also a 2016 CJA Panel Letter from Derek Miller, President and CEO of inData, describing the specifics of their offer to CJA panel attorneys.

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If you have any questions regarding the utilization of any of these litigation support software programs in your office, please contact either Alex Roberts or Kelly Scribner of the National Litigation Support Team at 510-637-3500.

E-Discovery Software Makes The New York Times: But What Does It Mean For You?

Always an observant lot, a number of federal defenders emailed me the link to a March 4, 2011 NY Times article which discusses how e-discovery software is saving attorney time and charges. See Armies of Expensive Lawyers, Replaced by Cheaper Software. Comparing the traditional method of document review where attorneys and paralegals do “eyes on paper,” the article discusses e-discovery software that can analyze documents more quickly and for less money – music to everyone’s ears, especially those who do indigent criminal defense work.

The article describes how some of these software analytics can more effectively search and retrieve information than ever before, even if a human being viewed and indexed every document. Examples include “conceptual searching” software which, broadly stated, can find the ideas in which you are interested, even if the specific keywords are not contained in the document. So, for example, if you are looking for the concept of “bill of law,” the program identifies relevant documents (documents that reference bill of laws, constitutional amendments, etc.) and excludes other documents which may have the word “bill” in them but do not include the concept of “bill” that you are interested in (such as duck bill).

(As an aside, this has been discussed and utilized for years within the electronic discovery world. Over four years ago, The Sedona Conference, a nonprofit research and educational institute dedicated to the advanced study of law and policy, published an excellent commentary discussing the challenges and potential solutions involved with searching large amounts of ESI in The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, August 2007 (TheSedonaConference.org). In part, the commentary states that “[h]uman review of documents in discovery is expensive, time consuming, and error-prone. There is growing consensus that the application of linguistic and mathematic-based content analysis, embodied in new forms of search and retrieval technologies, tools, techniques and process in support of the review function can effectively reduce litigation cost, time, and error rates.”)

As many federal defender staff and CJA panel attorneys know, federal criminal cases are experiencing an explosion of electronic data, with cases involving increased volume, multiple file types and multiple source devices including social media. The idea that technology can save us from this problem is enticing. I often wish that I was Spock talking to the computer on the Starship Enterprise, where the computer would provide me the relevant information succinctly and to the point (with a friendly voice to boot).

Though artificial intelligence has grown by leaps and bounds, it is nowhere near that Star Trek 23rd century vision of the world, and all of the software described in the New York Times article requires significant up-front human thinking and planning to make it effective. That is not say it isn’t useful and shouldn’t be explored (in fact, it must be), but the software in itself is not a panacea to the problems of electronic discovery.

The article, which also focuses on the possibility that the software may reduce legal jobs, is a great read if you are interested in what is the current cutting-edge technology. Practically, the products mentioned in the NYT article are out of the realm of most people’s current day-to-day practice. The higher level analytics are very expensive and are currently only useful for the few exceptional cases that reach extremely large volumes of data. That said, there are limited instances where defense teams have taken advantage of this type of technology to narrow the data in their case. We have found that by using the proper workflow, doing front-end thinking and planning, this technology does result in overall cost-effectiveness and allows defense teams to spend more time on what they care about most.

Three additional points to consider:

  1. Paper and electronically scanned paper generally does not work with these new tools
     
    The majority of discovery in indigent federal criminal cases is in scanned paper form, i.e., it was a piece of paper that was imaged and then converted into either TIFF or PDF format even though almost all of that paper was originally produced by a computer). As exciting as these new tools are, they generally don’t work with scanned paper because they are designed to use the metadata associated with the native ESI to do the higher level searching and threading. This is one reason why it is important for opposing parties to discuss in advance the form in which information in the case will be produced.
     
  2. When dealing with sizable amounts of information, a review tool is needed
     
    Historically, people who do indigent criminal work have gotten by without using an in-house review tool such as Concordance or Summation, or one of the many web-hosted solutions now out there. Instead, they used Adobe Acrobat Reader, IPRO, Windows Explorer, or they simply printed out the documents to look at them. With the dramatic volume increase, and the myriad file formats containing additional information that isn’t visible when you simply hit “print,” federal defender offices and CJA panel attorneys have a greater need to have a review tool (be it on their computer or web-based), which allows them to more effectively review and manage case information.
     
  3. Greater productivity is needed just to keep pace with the information explosion. 
     
    Though not a panacea, we must examine and embrace new technologies to deal with this onslaught. Electronic discovery experts recognize that while all the new technology in the litigation support arena should allow us to search in more sophisticated ways, organize in a more refined manner and review more data faster, we continue to be hard pressed to keep up with the amount of information inundating us.

Ralph Losey, a nationally recognized electronic discovery expert, had his typical witty and insightful take on this article. See NY Times Discovers e-Discovery, But Gets the Jobs Report Wrong.  I found the following particularly relevant to the future challenges in the criminal litigation context: “The new technologies allow us to go faster and search and review more and more bits than ever before, but still, we are just treading water. . . . I do not know the actual metrics here. I don’t think anyone does. But it is my impression that the incredible advancements and improvements in search and review speed made possible by some software are roughly counterbalanced by the growth in information.”

The “tried and true” discovery management techniques that serve so well in cases involving a handful of bankers boxes of paper documents will not work in modern-day litigation. Just the volume itself forces one to take advantage of what technology has to offer. In this point in time, everyone who practices law uses some form of technology. By taking the next steps of learning more about technology and understanding how information is stored digitally, people can do their jobs more effectively and efficiently. I firmly believe that with the right education, human resources, processes, and tools, the computer can help you process, organize, and find critical information more quickly and allow you to more effectively represent your client during these times of limited funds.

– Sean

Posted in ESI