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Twelve Electronic Discovery Mistakes Often Made by Vendors (That they won’t tell you about!)

Electronic Discovery vendors do not simply run electronic documents through a magic box and hand you the processed results on DVD. There are many steps taken in the electronic discovery process, which means many opportunities to make mistakes.  If you don’t know what your electronic discovery vendor is doing to your documents, here is a simple list of mistakes that occur quite frequently.  Make sure that your electronic discovery vendor is not committing these common mistakes:

Electronic Discovery Mistake No. 1: Producing redacted text.

You can redact an image, but unless you redact the corresponding text file and metadata, you are disclosing your client’s privileged information.

Electronic Discovery Mistake No. 2: Producing privileged documents.

In one case we had, the opposing party produced all of their privileged documents with the tag “Privileged”, as well as their electronic attorney notes for each document in the production.  Oops!  Here’s a tip—use red labels for DVDs that contain your client’s privileged documents.  Red labels make it less likely that you will hand off the wrong disc to opposing counsel.

Electronic Discovery Mistake No. 3: OCR’ing documents instead of extracting text.

Many vendors do this without you knowing it.  While extracting the text of a document for use in keyword filters is 100% accurate, OCR is at best only 70 to 80% accurate, meaning that this process overlooks 20 to 30% of the documents. (NOTE: OCR stands for Optical Character Recognition.  It’s the process by which a computer can essentially ‘read’ hard-copy documents and convert them into computer-based text.)

Electronic Discovery Mistake No. 4: Altering metadata by opening difficult files (as opposed to simply viewing them).

Most documents are TIFFed by using QuickView Plus which does not actually open the document, it simply views it.  QuickView Plus cannot TIFF all documents.  For these problem documents, vendors sometimes load them onto one of their computers to open before TIFFing it.  Insodoing, they change the metadata so that it reflects information from the electronic discovery vendor’s computer – including the file path, custodian, and last accessed date – not the true custodian’s computer.

Electronic Discovery Mistake No. 5: Not collecting all file types.

Many people will create their own file extension names for their own unique naming convention.  Instead of using “.doc” for a word processing document, they may use “.ltr” to denote a letter, or “.mem” for a memo.  If the vendor only processes the main file extension types, you may be missing many documents.  There are software programs that do not rely on the file extension alone to identify file types.

Electronic Discovery Mistake No. 6: Not opening columns of spreadsheets to widest cell and not showing hidden cells.

When you create an image of a spreadsheet, it is very easy to miss data if you do not expand each column to the width of the widest cell in the column.  While you could still see this data in the native file, you will miss it in the TIFF if you fail to expand every column.

Electronic Discovery Mistake No. 7: Not producing spreadsheet formulas.

Typically the numbers in a spreadsheet are not nearly as important as how you calculated the numbers.  Simply printing out a spreadsheet to PDF loses the formulas.

Electronic Discovery Mistake No. 8: Altering “current” dates.

Sometimes memos, letters, or other documents will have fields that will automatically display the current date.  This can be good to make sure that you do not misdate a letter you intend to write, but bad if you later want to determine when you wrote a letter.  If care is not taken in the discovery process, these dates may display the date the document was processed by your electronic discovery vendor, not the true date intended by the document’s author.

Electronic Discovery Mistake No. 9: Altering dates by mishandling documents.

The last modified date for each document may reflect the date the documents were processed for discovery, as opposed to their true date.  This mistake happens all the time.

Electronic Discovery Mistake No. 10: Producing documents out of order.

Some vendors order documents in the order they get processed, which means that the order may get mixed up if larger files take longer to process than smaller ones.

Electronic Discovery Mistake No. 11: Stamping incorrect time.

If a vendor in California processes documents received from a custodian in Florida, the documents’ creation date, etc. could be different than the original files due to the time zone the documents are processed in.  Let your vendor know if the files being processed are from a different time zone or have them default to Greenwich Mean Time (GMT).

Electronic Discovery Mistake No. 12: Limiting file sizes.

Some electronic discovery processing programs will not process files that are over a specified size.  The result is that these files are simply left out of the production.  It is much better to learn about such limitations before your electronic discovery vendor is deposed by the other side.