Although email data can come in many formats, the format we see in eDiscovery projects most often at D4 are PST and MSG files from Microsoft Outlook. With Microsoft Outlook being a fairly standard application that almost everyone has access to, legal teams have a tendency to do “quick reviews” of email data in Outlook, especially when the volume of data received is small and needs to be produced quickly.
What does the “quick review” approach involve? Typically it involves an individual (who is not the original custodian) opening and reviewing source PST or MSG files using internal, or generic external, Microsoft Exchange accounts.
Some law firms have eDiscovery protocols and IT policies in place to prevent this from happening. For those that don’t have the technical resources, or believe that there is nothing wrong with reviewing source emails in Microsoft Outlook, here are nine crucial reasons why you shouldn’t use Outlook as a review tool.
1. Inadequate Litigation Review Functionality for a Defensible eDiscovery Process and Workflow
You cannot work with email data in Outlook in the same way that you can with products like Access Data FTK, Relativity, Ipro, Concordance, Summation Pro, etc. By reviewing emails directly in Outlook, legal teams are bypassing key steps in the eDiscovery process.
2. Savvy Opposing Counsel May Question Collection and Review Protocols
The number of lawyers with eDiscovery experience has significantly increased over the last few years, and opposing parties are beginning to challenge protocols. Additionally, courts are starting to pay considerably more attention to how the eDiscovery process is handled by attorneys and their clients. Therefore, it should not be surprising that “Emails were reviewed in Microsoft Outlook.” is not a good enough response when asked how review was performed.
3. Email Accounts Used to Review Source Data Always Belong to Someone
If eDiscovery protocols are questioned, counsel will most likely not want to disclose that the emails were accessed outside of the rightful owner’s / custodian’s account.
4. May Compromise Integrity of Metadata
Metadata is likely to reflect the account owner’s personal information, or the basic information of the law firm or corporation, instead of the rightful owner’s / custodian’s account information.
5. Information from the Outlook Account Used to Review Emails May be Displayed
When printing messages to PDF files or paper, the account owner’s name typically appears in the top right corner of the email header section. Please note that reducing this to a font size that isn’t visible to the human eye is not a proper—or defensible—eDiscovery solution.
6. Data Corruption and Spoliation
There are a number of actions which, if taken while someone is reviewing emails in Outlook, could result in data corruption, such as broken or corrupt family relationships, missing attachments and/or lost source information. Some of these actions include; moving emails to different folders, renaming or deleting folders or emails, accidentally forwarding or sending emails from a live email account, creating new versions of emails by exporting and removing attachments, etc.
7. May Result in Failure to Produce Email as It Was Maintained in the Ordinary Course of Business
FRCP states the following:
34(b)(2)(E) Producing the Documents or Electronically Stored Information ….
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (emphasis added)
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms (emphasis added).
Emails that have been reviewed in a Microsoft Exchange Outlook account outside of the rightful owner’s / custodian’s account could prevent legal teams from producing email as it was maintained in the ordinary course of business.
8. Additional Costs Incurred to Re-Collect and Re-Produce Data
If opposing counsel identifies issues with email data in a production, you may be required to redo the collection, processing, review and/or production steps, which will incur unnecessary, additional costs.
9. Outlook is Not a Review Tool.
Outlook is not a litigation review tool and most often, is the equivalent of linear review without the protection of a defensible workflow. By using Outlook instead of industry standard review platforms, legal teams miss out on utilizing analytics and the advanced technologies that identifies key relationships and conversations.
Legal teams and corporations can choose to take shortcuts with email data in an attempt to expedite the process and save money; however, they do so at their own risk. Best practice is to send all email data, regardless of volume, through the same repeatable and defensible process so that eDiscovery protocols don’t supersede the actual issues of a case.
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