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Top Ten Electronic Discovery Mistakes Made by Attorneys

Many attorneys consider electronic discovery to be their vendor’s problem.  That’s a big mistake.  If you don’t understand the few basic principles of electronic discovery, you may cause yourself and your clients reason to worry.  Here are a few common mistakes to watch out for:

Attorney Electronic Discovery Mistake No. 1: Running PDFs, TIFFs, and other image files through a keyword filter.

While you can run documents with electronic text through a keyword filter to cull the document set, many images do not have electronic text.  That means that your filters will miss all responsive image files.  One solution may be to OCR the image files before running them through a keyword filter, but OCR is only 70-80% accurate, and is unlikely to catch handwritten notes or relevant pictures at all.

Attorney Electronic Discovery Mistake No. 2: Not requesting all available metadata.

Most attorneys do not understand the significance of metadata.  It is much harder to request metadata after the fact—you need to request it at the very beginning.

Attorney Electronic Discovery Mistake No. 3: Atlering metadata by copying files.

By copying files to use for discovery, you alter all of the creation and last accessed dates in the metadata.

Attorney Electronic Discovery Mistake No. 4: Too broad or too narrow keyword searches.

Don’t use your clients’ company names or employee names for keyword searches – the company name is likely in the email address for each employee, which means you will receive a 100% return on your keyword filter.  Similarly, employee names will likely be in the name of the custodian metadata field for each document, also yielding a 100% return.  Review the results of keyword filters and sample the non-responsive data for relevance.

Attorney Electronic Discovery Mistake No. 5: Treating all files types alike.

You should request spreadsheets and databases in native format because creating images out of these documents becomes extremely difficult to review – spreadsheets and databases can span many pages across and down, making it very hard to piece the entire document together.

Attorney Electronic Discovery Mistake No. 6: Reviewing data before collecting it.

You shouldn’t peak at files before preserving them—you can alter the last accessed metadata date, as well as potentially overwrite deleted data.

Attorney Electronic Discovery Mistake No. 7: Not deposing your adversary’s electronic discovery vendor or custodian of records. 

If you don’t know how the other side processed their documents, you won’t know what you are missing.

Attorney Electronic Discovery Mistake No. 8: Not collecting all electronic documents.

Don’t forget that copiers, scanners, and digital senders now come with very large hard drives that preserve data.  They can be a great source of evidence because employees typically do not think to delete documents stored on them.

Attorney Electronic Discovery Mistake No. 9: Failing to preserve outside email accounts.

AOL deletes emails in your inbox 48 hours after you open it if you do not save it to a special folder.

Attorney Electronic Discovery Mistake No. 10: Assuming you won’t get caught for withholding documents.

Metadata won’t lie, even if you will.