Correcting the Record: Searching Attachments in Outlook

This brief post goes out to Michael Berman, a partner at Rifkin Weiner Livingston, LLC in Baltimore, Maryland.

Shortly after the release of Project Management in Electronic Discovery, Michael wrote to me raising a question. Others have also asked the question, so I decided to address the issue here.

Michael first praised Project Management in Electronic Discovery as “an excellent book.”  Then he said, “I have one question:  You indicate (in the book) that Outlook’s search function does not search attachments –I have a specific option in Outlook 2013 to search attachments (of course, assuming that they are searchable).  May I impose on you to explain?”

Over the ensuing weeks Michael and I exchanged a few emails on the subject. I explained that certainly earlier versions of Outlook Exchange did not provide for searching of attachments. “One problem with writing a book about technology is that the technology changes faster than you can write a book,” I wrote.

Nonetheless, I promised Michael I would look into the issue. And here we are. It took a little longer than I anticipated, but I think we have an answer.

Of course, when I began writing the book over 4 years ago, I was not using a version of Outlook that searched attachments. Indeed, my experience with earlier versions of Outlook taught me it is not possible to search attachments in Outlook. We’ve since learned, though, that starting with Outlook 2013 it is in fact possible to search the text of attachments. Later versions of Outlook do index attachments and allow for searching (assuming there is text in the attachment that can be indexed). The image below from Michael shows the search functionality.Searching attachments in Outlook

As a result of the exchange with Michael, I have updated the text of Project Management in Electronic Discovery. The book now states that later versions of Outlook do index attachments and allow for searching attachments.

Thanks, Michael (and others) for raising the issue and giving me the opportunity to correct the record.

There is a comment section below if you would like to chime in on the issue.

Alternative Facts and Artificial Intelligence

A few months back, a post here began by asking “Who Put the ‘Artificial’ in Artificial Intelligence?” At the time, I was sort of complaining about low adoption rates for technology tools in legal. I suggested that good marketing and “shiny object syndrome” are responsible for the rise of new technologies in legal. In the end, I question whether it’s appropriate to describe technology tools in the legal business as “artificial intelligence” tools.

Generally, I hardly think of myself as an “I told you so” type of person. If I’m being honest, though, I do think I told you so more than I articulate I told you so. (I like to think I’ve learned something tactful over the years). But an interview on Fortune.com got me to thinking.

IBM Logo Artificial IntelligenceFortune spoke to David Kenny, leader of the Watson Group at IBM. I thought while reading the interview that if anyone has a good grasp of artificial intelligence it’s IBM, right? Well, I have news: the word “artificial” really has no place in the technology tools that are in use in the legal industry—at least not the ones in use in e-discovery.

It’s Elementary My Dear Watson

To distinguish between the many AI terms out there, David Kenny said,

“Deep learning uses more advanced things like convolutional neural networks, which basically means you can look at things more deeply in more layers. Machine learning could work, for example, when it came to reading text. Deep learning was needed when we wanted to read an X-ray. And all of that has led to this concept of artificial intelligence—though at IBM, we tend to say, in many cases, that it’s not artificial as much as it’s augmented. So, it’s a system between machine computing and humans interpreting, and we call those machine-human interactions cognitive systems.”

“As for what we would call unsupervised learning—which is to say, we’re not training it to process but it’s beginning to learn on its own—that is moving more in the direction of what some consider true artificial intelligence, or even AGI: artificial general intelligence. I would say we’re at the early stages of that.”

Explaining how Watson is able to ingest the text of 26 million medical and scientific articles to help doctors find clinical trials for cancer patients, Mr. Kenny said:

“. . . it starts with knowledge extraction: reading documents, finding common phrases, associating those together. It does the same with paragraphs. Then it has to get corrected. The human annotation is critical here: Out of the gate there’s no way that I would trust the system to do unsupervised learning and just find the patterns on its own. You literally tell Watson, “Yes, that meant this, yes those go together. Yes, you have that right, or, no, you don’t.”

“And when you tell the system the “no’s,” it re-weights its algorithms until it gets to a point where it would have produced the correct answer. And it gets better over time.”

True Artificial Intelligence: Who’s Supervising Who

There you have it, folks. That is machine learning, hands down. And it’s precisely how the technology applies in e-discovery. It’s not a stretch, then, to say that what we are currently doing in e-discovery is not artificial intelligence. Additionally, what many now refer to as artificial intelligence is actually machine learning. Or, for the marketing folks out there, augmented intelligence (it’s still “AI” but not quite as sexy, right?)

To call it anything else, I think, is irresponsible and misleading. Lest we forget –and unless I missed something—the TAR, predictive and analytic programs in use in legal are algorithmic tools that require some level of human input. That’s not AI, as Kenny points out, because true AI is not supervised.

Why Does This Matter?

It matters because I think it’s not accurate. The reason it is “augmented” and not “artificial” in its application in the legal business is fairly obvious. But in addition, as far as I know, there are no lawyers –none who want to keep their licenses anyway—who are making important decisions, giving advice to clients, or reviewing and producing documents based on true artificial intelligence. No one plugs documents into a computer and spits them out without lawyers being involved (at least I hope not). Seems to me that there’s always a human to some degree augmenting the process.

Now, I’m not a scientist or a linguist. Heck, I barely qualify as a writer. It’s troubling, though, that in an industry in which facts and a search for the truth are paramount too much time and money goes to promoting products and ideas that are, how should I say, “artificial.”

I think it was the first celebrity law enforcement officer, Joe Friday, who said “Just the facts Ma’am.” So, let’s just stick to the facts in e-discovery and try not to promote tools that promise the stars and regrettably fall short. Ultimately, I think doing so will help foster adoption of technology in the legal industry.

I’d love to hear your thoughts on the issue, especially those of the scientists out there.

Information Governance: The Foundation of E-Discovery Projects

Sound information governance practices are easily the foundation upon which successful electronic discovery projects are built. I know this because I have lived it. Without question, projects run more smoothly when the client has strong information governance practices in place.

Records Management Reinvented

Information governance involves managing the creation, use, storage, and disposition of data, records, and information maintained by an organization. It encompasses ideas, concepts, and practices involving but not exclusively relating to electronic discovery. And it involves managing not only paper and electronic records, but all information maintained by an organization. It also implicates compliance with laws and regulations pertaining to records retention, information security, and the privacy and confidentiality of information.

Thought of another way, consider that the records or any electronically stored information may potentially be evidence in a lawsuit or investigation. Information governance, then, becomes critically important because the records of an organization provide insight into the past and sometimes future activities of that organization. The information may be needed to tell a story.

Long before we had e-discovery, we had records management. ARMA International, the largest records and information management organization in the world, has been around for 60+ years. Now we have this more holistic view of the value and the efficient, collaborative use of records and information, particularly as it relates to legal matters. Information governance is not a technology or a tool; it is not just policies and practices; or managing risks or costs; it is an enterprise-wide undertaking designed to organize information for the benefit of the organization. It’s the new records management – on steroids.

What’s a project manager to do?

Many people ask “what are the information governance responsibilities of a project manager in e-discovery?” For starters, it is essential for the PM to understand information governance, records and information management generally. A PM needs to have basic knowledge of information technology infrastructure and data management systems. And although it is ultimately the client’s responsibility to implement effective IG policies, there may be situations in which an organization does not have IG policies. A PM may need to guide the client or at least refer the client to resources that may help to structure sound IG policies.

One objective of information governance is for organizations to prepare for litigation. Being “litigation ready” means that an organization knows (or can easily determine) what information it has, where that information resides, and what needs to be done to preserve it for discovery when necessary. So, at the outset of a discovery project, the PM and attorneys should consider the client’s information governance maturity. If formal policies exist, what is the nature and substance of the policies? What is the extent of compliance with the policies? If no policies exist, how does that impact the preservation of information in discovery? Project managers need to help attorneys and their clients understand information governance and its importance to the discovery process.

Regardless of whether the client has policies in place, as a PM, it is important to understand how the client creates, stores, and disposes of ESI. It is necessary to learn the types of hardware, software, data processing and storage devices the client uses. This includes the client’s network configuration, operating systems, workstations, laptops, file and email servers, and backup systems. A data map or even a simple network diagram is helpful in learning about an organization’s systems and helps to visualize and identify the locations of the different types of electronic records maintained.

Figure 1:  Simple Network Diagram

Information Governance Server Diagram

Ask Questions (lots of them)!

Ideally, attorneys and the PM should confer with the client’s in-house counsel and IT and records personnel. A good practice is to use a questionnaire or checklist to ask about the client’s systems and identify assets that may contain potentially relevant information. Doing so not only provides a record of the conversation, but also enables attorneys to make informed decisions regarding the best course of action for preserving and later collecting the documents. A good questionnaire or checklist might make inquiry about the following:

  • Network configuration, storage, and operating systems in use
  • Types and number of file servers in use and the contents of each
  • Email applications, number of servers, mail store size and retention
  • Software applications, databases, or proprietary applications in use
  • Types of workstations and/or laptops in use
  • Remote access, home use, and personal and smartphone device polices
  • Backup systems in use; backup policies, frequency, and retention
  • Legacy or retired systems no longer in use
  • Policies on former employees, retention and disposition
  • External media, hard drives, CDs or DVDs, and flash drives
  • Internal or external websites, intranets, shared drives, and social media pages
  • Text messaging programs and unified voicemail systems

A client’s adoption of and consistent adherence to sound IG policies can demonstrate reasonable and good faith compliance with discovery obligations. If, for instance, documents or ESI are no longer available because they were disposed of pursuant to a formal policy before any obligation arose to retain them, then an organization should in theory be freed of the obligation to preserve and collect or produce that information. Defensible deletion like this will ultimately reduce the volume of ESI collected and can result in huge savings on e-discovery projects. It is not improper to dispose of ESI if there is no legal or other obligation to retain it.

Good IG policies can result in more efficient and cost-effective discovery projects. When an organization knows the information it has, where it is, and how best to preserve or collect it, the early stages of the e-discovery process will be more efficient. Likewise, an organization with sound IG practices is less likely to over-collect ESI in discovery, which further reduces cost.

Conclusion

The information governance stage of a discovery project—learning how a client creates, stores and manages its documents and ESI—provides the foundational underpinnings for many decisions that will be made later in the case. While the responsibilities associated with information governance rest for the most part with the client organization, it is important that the project manager and attorneys who advocate for the client know and understand the client’s IG policies and practices.


Links to additional resources on Information Governance:

2016 Browning Marean ILTACON Scholarship Award

Anyone who knew Browning Marean would have known him as a true ambassador of electronic discovery and of technology in general. One would not always make that connection upon meeting him. Browning had this wise, elder, grandfatherly thing about him. Not that he was old or anything; he was young, frankly, in the mind. It’s funny, because he was just as comfortable reciting Shakespeare as he was the latest e-discovery case holding.
I met Browning in a Chicago airport while we were both laid over for connecting flights. I was on my way to Phoenix and he to Europe. I knew him; he did not know me, or so I thought. He actually recognized me, waved me over to his table in the food court and said “didn’t I recently see you on a panel discussion . . .” Of course, I knew he had. But what surprised me is that he remembered. We talked for the next 45 minutes and we became fast friends. It’s the kind of man he was –always eager to meet folks, share his wisdom, and his Browning-isms. I’ve thought a lot about how to honor this generous and genuine man, someone I and many others considered a friend, but every time I thought I had an idea, somehow it fell short of the honor he deserved.
Browing
So, when I saw that ILTA is offering a scholarship in Browning’s name for attendance at their annual conference, I figured the least I can do is post something about the scholarship and pass on the link for registration in the hope someone who aspires to work in the business Browning enjoyed so much will apply and attend this year’s educational conference.
ILTA has established two scholarships to ILTACON, one for individuals who live and work in the U.S. and one for those outside the U.S. These scholarships are targeted to professionals who work within the E-Discovery/Litigation Technology and Support field.
Asked about his experience, last year’s U.S. recipient, Alex Ponce de Leon from Google, said that “winning the Browning Marean scholarship was a fantastic way for me to attend ILTACON and increase my involvement in a great organization. I was able to bring back and share the latest developments in the law and technology with my colleagues at Google.” And Matthew Golab from Sydney, Australia, last year’s recipient of the international scholarship, said that “it’s hard to put into words the experience of attending ILTACON as there are so many highlights…. There were many times when I wished I could attend several sessions running at the same time….Another highlight is . . . seeing the founders and owners of many key systems that we use in our industry, as well as many industry luminaries, and being able to introduce myself to them and have a chat.”
The application process is straightforward and painless to complete. Apply today! You’ll be glad you did. You may access the ITLACON scholarship application here: Scholarship Application

4th Annual University of Florida EDRM E-Discovery Conference

Just back from Gainesville and the annual University of Florida EDRM E-Discovery Conference and once again congratulations to Bill Hamilton, George Socha, and a fantastic conference staff for putting together a top-quality event full of e-discovery education, camaraderie and conversation. What’s cool about the UF-EDRM conference is that you can attend in person or watch and listen online since the entire conference is streamed live over the Internet. I’m honored to be part of this conference again this year. Look for some pics in the Photo Gallery.

I spoke on a great panel related to the collection of ESI with fellow panelists Bob Rudnicki, Megan Kelberman and Jon Rowe. What is different about the annual UF-EDRM conference is it’s unique approach to how sessions are presented. Each panel consists of speakers, usually experts on the topic, who identify and discuss an issue or problem in the industry, and then there is typically a software provider who demonstrates how the software may help solve the problem. In this way it is unlike other conferences.

In our session, Bob Rudnicki presented the problem or “headache” of a putative class action lawsuit with the potential need to collect ESI from thousands of brokers around the nation. Megan and I (as the lawyer and litigation support professional, respectively) provided some “aspirin” and commentary on how Bob might go about solving this problem. And then Jon demonstrated his easy to use and defensible collection software. We also had great questions from the audience.

2016 UDEDRM Panel

The bottom line with collections, folks, is to focus on only the sources of ESI that will yield potentially relevant materials, use defensible tools that write-protect the data when it is copied, and document the process using a collection log and appropriate chain of custody.

Why you should read this book . . .

If the focus of your work or a goal in your career is learning the principles of project management, how they apply in a legal support setting, and how to use these principles to improve litigation support and electronic discovery deliverables in the legal industry, this book is the most comprehensive exposition on these subjects to date. Not only will it provide an understanding of the basic principles of traditional project management, this book also outlines the best practices in a relatively young industry in search of standardization. These two things make this book incredibly valuable to the novice. In addition, for the experienced practitioner and the journeymen in the industry, this book will provide a useful reference for years to come

The book is called Project Management in Electronic Discovery

Book Cover Title

I write in this book about the work that a project leader undertakes. But more importantly, I write here for lawyers, paralegals, students, and support staff at law firms and in corporate and government legal departments or at service providers. This book captures the principles of project management and the best practices of discovery in litigation, particularly as they relate to the management of large volumes of electronically stored information.

At the same time, it serves as a guide and reference for students of the law, paralegals, and attorneys, and illustrates how project management processes and technology may be used to provide efficient, client-oriented services and high-quality deliverables in a litigation support environment—at scope, on time, and within budget.

I am inspired here as much by the need for proper discourse on the use of project management in legal discovery projects as by the growing insistence that legal teams function more efficiently and cost effectively. That and the realization I came to recently when I was asked to help design and teach a project management class for students eager to break into the litigation support field. Try as we might, neither the university nor I could find an appropriate text for an electronic discovery project management class. An article I authored a few years ago that outlined some of the material presented here for a trade magazine served as a jumping off point for this book.

Another contributing factor has been my many working with lawyers and in law firms, most recently as the Director of Litigation Support Services at Stroock & Stroock & Lavan LLP. Putting in countless hours, making I imagine nearly every mistake possible, and observing a good deal of inefficiency, and now having designed and implemented litigation support and electronic discovery work-flows, I have some sense of what does and does not work. To be sure, not all project management principles strictly apply in the context of every legal discovery project. But many of the core principles can be applied and, in my experience working in the legal business, it has now become abundantly clear to me at least that using project management principles can and will serve law firms and their clients well.

Why write a book about project management and electronic discovery?

There has been considerable discussion regarding the applicability of project management in a legal setting. Driving the debate in part is the need of law firms and corporate legal departments to find efficiencies and reduce legal expenses. Law firms, which rely upon corporations for a slice of the $300 billion legal services market, have begun to listen. Most firms are adjusting hourly rates, staffing cases leanly, or have entered into unique and tailored billing agreements. Fewer firms, however, have dramatically altered the ways in which lawyers work and fewer still have adopted project management principles into their business model. This book addresses how project management may be used in a legal setting to make one aspect of legal work more efficient—the discovery process.
A distinction needs to be made between applying project management principles to the entire operation of a law firm and the application of project management to discreet aspects of legal practice. It is of course possible to apply project management methodologies to the operation of a law firm, from business development to matter management and throughout the individual cases, transactions, and subordinate tasks that make up the core of attorney practice. Indeed, a few firms focus on just that. The emphasis in my book, though, is on the application of project management principles in the context of providing litigation support services and the integration of project-oriented processes into managing legal discovery projects and, more specifically, electronic discovery projects.
There is much work to do in this area. In the United States, which is 80% of the global market, the electronic discovery market is growing incredibly fast. The market worth of the global electronic discovery industry has doubled since 2010 and is projected to quadruple by 2020. Driven by the massive growth of electronically stored information and the need to manage that information for civil litigation, the e-discovery market, including services and software, grew to over $7 billion in 2015. A recent report by Transparency Market Research projects 16% compound annual growth rate for services and software through 2022, increasing the market to more than $21 billion. A 2015 report by Gartner similarly projects double-digit year-over-year U.S. growth in e-discovery software.
However, due in part to the recession and the slower than expected economic recovery, the legal services industry is undergoing considerable change. Law firms have folded, others have merged, and even the best firms have reduced personnel by 10% to 30% in the past six years. Corporate legal department budgets are shrinking, and they face pressure to reduce legal expenses. One need not have an MBA or a law degree to conclude that the current business model at many law firms may not be sustainable in the long term. To survive, lawyers and legal support staff in the U.S. and abroad—those at larger law firms in particular—need to change the way they practice and deliver legal services. Applying project management methodologies to the practice of law is one tool that will differentiate great firms from good firms and provide the efficiency and sustainability needed in a legal market that is very different today from just a few years ago. Additionally, project management brings structure and common business sense to law firms, which traditionally are not run like a business.
By far, the most costly and time consuming aspect of litigation is the discovery process. Electronic discovery is the prime suspect in what is a disproportionate increase in discovery costs relative to the overall expense of litigation. It used to be that junior lawyers gathered in rooms filled with boxes to review documents. Technology has changed this. Discovery is no longer about boxes of paper; instead, it is about terabytes of data.  Information is now everywhere. Email and text messaging are ubiquitous, and social media, smart phones, and the Internet have invaded our lives. All this data is discoverable in litigation. Discovery is not more costly because of inflation or because attorney hourly rates have risen. In fact, the costs associated with discovery, particularly with electronic discovery, have gone down considerably. Discovery costs more today because there is so much more information and costs are driven almost entirely by the volume of data. These things—the volume of data, the time and cost it takes to manage this information—understandably have corporations, law firms, and the government concerned.
In a world overrun by electronically stored information, it should not surprise anyone that new processes, new technologies, and a new breed of legal support personnel have emerged. In the mid-1990s, as computers began to arrive at every employees’ desk, it became abundantly clear that email and electronic documents were a new source of discovery material. Still, it took years before for the legal community prepared rules that even acknowledged the discovery of electronic documents. Today, almost all documents are created on computers and they are stored not in file cabinets or boxes, but on optical disk and in databases. Analytics software, long used in other industries, is now used to parse through vast amounts of data and to find documents that make or break a case. The litigation support industry and the process of electronic discovery were born out of the need to integrate technology into the legal process. People who work in the industry provide technical support, software, project management, and consulting services to law firms, corporate legal departments, and the government. A completely new body of case law and rules governing the proper preservation, collection, review, and production of electronic documents has also emerged. This once nascent industry is beginning to mature and stabilize, and it seeks standardization and increased efficiency.
This is the backdrop for a book that introduces new and better ways to manage electronic discovery projects.