An important meeting was held recently that addressed electronic filing in Illinois. Invitations were extended by the Administrative Office of Illinois Courts (AOIC) to a select group of Circuit Court Clerks at the inaugural meeting of the Electronic Filing Committee. Circuit Court Clerks who are participating in a variety of pilot projects throughout the state gave a status report on the projects that had been previously accepted by the AOIC. Among those giving reports were Will, Ogle, St. Clair, Cook, Kane counties.
The Standing Committee on Legal Technology (CoLT) and the Assembly of the Illinois State Bar cooperated on the development of a position regarding electronic filing that included that filings should be free, Web-delivered, and use a common operating schema that requires no additional software purchases by the legal community. CoLT and the ISBA espoused a position that a unified system was desired and a scenario wherein a potential of 102 different methodologies was opposed.
This meeting was historic insomuch as there are some pilot programs that have been authorized for testing and evaluation. Successful e-filing test applications can serve as models for other counties to embrace facilitating a smoother, error-free and less-costly way in which court documents, filings, discovery and information exchanges can be effected. CoLT applauds this effort by participating Circuit Clerks and the AOIC and encourage that these projects be “fast tracked” and approved as they can be demonstrated to meet the goals and objectives of both the legal community and court professionals. Embracing technologies that make sense and yet meet national standards will allow access to court-related operations and provide increased efficiency, minimize redundant data entry, facilitate faster discovery and ultimately greater service to clients.
Embracing electronic filing at the state court level can follow the lessons learned at the federal level and may even lead to improvement. That’s a good thing.
This title brings to mind a magician performing a disappearing-reappearing trick. It also aptly describes the conundrum in which we attorneys find ourselves as we move further toward an electronic practice.
Hidden Information in Your Electronic Data
Whenever we create documents on our computers the computer programs we are using track what we are doing. They track who created the document, when it was created, how long they spent, how many words there are, when it was last edited and much more. This information is called metadata. The common definition for metadata is data about data, which is not very helpful. One federal court defined it as describing “the history, tracking, or management of an electronic document,” and includes such useful information as file names, location, format, creation and access dates, and user permissions.2
While metadata is contained within the documents you create, you cannot see it. You need to look for it. It is embedded in computer files about your document. For example, when I select File/Properties I can see some of the hidden information about this MS Word document.
On the “General” tab you can see the title, location, and history. The “Statistics” tab will give you the number of words, paragraphs, lines, pages, characters and more.
Much of this metadata appears innocuous enough on its face. In the context of litigation, however, metadata has often provided “smoking gun” evidence. Metadata can provide an electronic paper trail of who touched the document and what they did. Imagine testimony that a document was created and sent on a particular date. Or that only one person worked on that document. A quick look at the metadata could reveal the truth and provide powerful ammunition for cross-examination.
Taken further, technology exists to dig underneath the surface of documents, and depending on the tools being used, reveal deleted comments and prior drafts to the recipient. Significant discovery battles are fought over metadata because of the usefulness of this information.
The Crossroad between technology and ethics
However, metadata is hidden for a reason. This is not information that you intended as part of your final document. The Florida Bar Association is considering an ethical opinion3 that “mining for metadata” is unethical and should be stopped. Earlier in 2004, the New York State Bar issued opinions4 forbidding attorneys receiving electronic documents from using special tools to recover metadata and requiring the sending attorney to remove metadata before sending its documents.
These ethical opinions raise a challenging issue: am I sending documents to opposing counsel or third parties that contain (deleted) privileged client information? These opinions suggest that it is your responsibility to your clients not to transmit damaging metadata. We should be “scrubbing” our data before it leaves our possession.
Keeping Metadata Hidden
There are a number of methods to prevent metadata from leaving your computer.
Whichever method you choose, you should consider adopting a standard scrubbing procedure. With the scope and tools of electronic discovery ever progressing, it is important for you and your clients that you have a workable solution to prevent “now you don’t see it” data from becoming “now you do.”
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1. Peter Mierzwa is an attorney and General Manager at the Law Bulletin Publishing Company in Chicago. He Chairs the Chicago Bar Association Law Office Technology Committee and serves on the Illinois State Bar Association’s Committee on Legal Technology. He has moderated several conferences on e-discovery and spoken at the ISBA’s Solo/Small Firm conference on e-discovery and forensics. He can be contacted at pmierzwa@lbpc.com.
2. See Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005).
3. See the Florida Bar News article.
4. See NYSBA ethics opinion 749 and 782.
5. Microsoft has a free downloadable tool for 2003 versions of Word, Excel and Powerpoint at <http://www.microsoft.com/downloads/details.aspx?FamilyID=144e54ed-d43e-42ca-bc7b-5446d34e5360&displaylang=en>. Another popular product for Microsoft products is the Metadata Assistant sold by Payne Consulting Group, <www.payneconsulting.com>. The latest version of WordPerfect X3 includes a “save without metadata” function and the ability to natively import PDF documents “making it easy to reuse text and graphics stored in this format.”
Two things we all recognize about demonstrative evidence: it’s potent and it’s expensive. One great way to maximize the bang and minimize the bucks associated with your courtroom graphics is to kick off the visual development process with a brainstorming session.
Brainstorming helps you develop effective visuals. You identify the most important ideas to attack with visuals and ensure you have graphics that address all critical case issues. And your brainstorming work product makes it easy to communicate with artists about the purpose of each visual and to test the effectiveness of the designs they develop.
Brainstorming helps you control the cost of courtroom graphics. During the brainstorming session, you estimate the costs associated with your visual ideas and make informed trade-offs to keep demonstrative evidence expenses under control. The brainstorming process also reduces demonstrative evidence costs by minimizing the number of visuals you begin but don’t complete or complete but don’t end up using in court.
You can employ our brainstorming technique no matter whether you’re a sole practitioner or a member of a large trial team. And it doesn’t require one ounce of artistic skill. To the contrary, it helps you take what you do best (digest the evidence to create the most forceful case possible) and translate it into a powerful set of visuals.
Plan Ahead
Schedule your brainstorming session at least three months before trial. Plan to focus exclusively on demonstrative evidence as it is too important to risk diluting your discussions with other topics. Depending on the complexity of your case, set aside anywhere from three hours to a full day.
Make sure senior members of the trial team are available to attend and understand that they are to be primary contributors. If you’ve hired outside graphic consultants to assist in the design and production process, invite them to attend also.
Let all attendees (especially any artists and artist wanna-bes) know that they’ll be expected to check their paintbrushes at the door. The goal of this skull session is to develop a detailed list of the most important demonstrative evidence ideas, not to design the visuals that will communicate these ideas. Keeping idea definition separate from design development yields better ideas, better designs, and reduced costs.
Assign one attendee the role of scribe. He or she will capture the results of the proceedings using a computer with an LCD projector attached. This makes it easy for everyone participating to see the list of ideas being discussed and for the scribe to make revisions as the session proceeds.
Set up a Demonstrative Evidence Worksheet that the scribe will use to organize the thinking developed during the brainstorming session. A Demonstrative Evidence Worksheet is a table composed of rows and columns that you create using word-processing or database software. Each row represents a single demonstrative evidence idea. And the columns are used to capture critical information about each. Here are the columns you’ll want: Title, Type, Issue(s), Mission Statement, For Use By, Data Source, Estimated Cost, Key, and Production Status. The purpose of each column is described below.
Develop an outline of the issues in your case. As you brainstorm, you’ll use this outline to ensure you’re developing ideas for all case issues. By having this outline completed before your session, you’ll minimize the risk of turning your demonstrative evidence brainstorming session turns into an issue outlining one.
Finally, circulate a memo laying out the objectives, agenda, and ground rules for the brainstorming session. Include your issue outline as an attachment.
The Brainstorming Process
Begin your session by reviewing the agenda and making sure all attendees understand the ground rules. Then plunge right in. There are three phases in the meeting: (1) developing ideas, (2) fleshing out the details behind each, and (3) evaluating your ideas to determine which make the cut.
Step One: Define Ideas
The first phase of the brainstorming process is to create an exhaustive list of demonstrative evidence ideas. At this stage, all ideas are great ideas. Avoid debating the merits of any idea; simply build your list. Don’t worry -- your chance to cut out lame ideas will come soon enough.
Capture Favorites
Over the months or years of working up a case, trial team members have no doubt built up a mental list of favorite demonstrative evidence ideas. Offer each attendee a chance to contribute.
Give each idea a working title and have the scribe enter it in the worksheet. In the worksheet’s Type column, list your expectation regarding the medium that will be used for each visual: blow-up, chart, model, animation, video, and so forth.
Work Issue By Issue
Once everyone has had a chance to list pent-up ideas, break out the issue outline you prepared in advance of the meeting. Work through it issue by issue, and develop additional ideas that would help communicate your position on each issue. For each idea, capture a working title and an indication of the type of visual you expect it be.
Step Two: Flesh Out Ideas
After you’ve generated your list of graphic ideas, it’s time to work back through them one by one and add critical details about each.
Capture Issue Relationships
Use the Issue(s) column in your worksheet to capture the name of the issue or issues on which each visual will help you prevail. Once you’re done, tally the number of visuals you have planned for each case issue. You may discover that some issues have a multitude of graphics and others have too few. If this is the case, take corrective action.
Define Mission Statements
In the Mission Statement column, capture a description of the intended impact of each visual, i.e., what the trier of fact should think after seeing it. Make the inference you want jurors to draw explicit. If you find yourself struggling to define the mission of the visual, kill the idea.
Mission Statements play an important role in the process of designing the actual visuals. They keep artists focused on the communication goal of each visual. And they provide a benchmark by which to judge the success of your artists’ design efforts.
One caveat: your Mission Statement should define what you want to communicate, not how it should be done.
List Who Will Use the Visual
In the For Use By column of your worksheet, identify the witness or other trial segment (e.g., opening or closing) with which each visual is to be used. If you’re unsure, enter a question mark. If you’re trying to decide between a number of candidates, list their names followed by question marks.
Capture the Data Source
In the Data Source column, name the piece(s) of evidence on which each visual will be based.
Sometimes the source is obvious. For example, the source for the Blow-up of the Lang Memo is the Lang Memo. However, many times the source of the data is unclear and needs to be defined for those who will be creating the visual. For example, suppose you’re working up an antitrust case and want a visual showing the defendant’s market share over time. Where is this data coming from?
Don’t let your artists start designing a visual before you have in hand the data that underpins it. Frequently, the actual data doesn’t have the oomph that was anticipated and the idea must be abandoned. The result: time and money down the drain.
Step Three: Evaluate
Once you’ve fleshed out your list of demonstrative evidence ideas, you can step back and assess their merits. Evaluate the absolute value of each idea, as well as its value relative to its likely costs and relative to the potential impact of other competing ideas.
Estimate Cost
Based on input from your graphics consultants or your prior experience developing courtroom graphics, estimate the cost of each visual and capture this appraisal in your worksheet.
Evaluate Criticality
Discuss the relative merits of each visual taking your cost estimate into consideration. Use the Key column in your worksheet to flag the most important ideas. If you later find the cost of your visuals is exceeding your budget, refer to this assessment to determine which ideas to push overboard.
Give the Green Light
Finally, identify the ideas that your artists can start to design. Also be sure to take the important ideas for which you’re still missing data and assign members of the trial team to develop it.
Update the Production Status column of your worksheet based on these determinations. As your visuals proceed through the production process, you’ll track progress by moving each idea along this continuum of possible values: Unapproved Idea, Approved Ideas - Awaiting Data, Being Designed, Design Approved, In Production, and Produced.
Follow-up
After your brainstorming session, have the individual who acted as scribe distribute copies of the Demonstrative Evidence worksheet you’ve created. When artists submit mock-ups of your visuals, use the information contained in your worksheet to critique their designs.
Soon enough, you’ll be the proud owner of a winning set of courtroom graphics. Investing a few hours in a demonstrative evidence brainstorming session will have paid handsome returns.
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About the Author: Greg Krehel is a co-founder of CaseSoft (www.casesoft.com), the developer of five software tools for trial teams. Greg has written ten other case analysis white papers that you may find of interest, e.g., “Chronology Best Practices” and “Creating and Using Issue Analysis Memos.” PDF versions of these articles are available at no charge by visiting <http://www.casesoft.com/training/articles.shtml>. Trial versions of CaseSoft’s CaseMap case analysis software and TimeMap timeline graphing software can also be downloaded from <www.casesoft.com>.
Favorites is a feature of the newsletter that highlights those programs, utilities, gizmos, gadgets, etc., that we love. Sure, we could probably live without these, but who would want to. If you have a favorite you want to tell others about, contact Bryan Sims at bsims@trwlawyers.com. This installment of Favorites discusses the use of iScrub, a metadata removal tool.
As noted in the metadata story earlier in this issue, programs keep track of certain information, or metadata, about documents when they are created, modified, etc. Ethical and practical obligations require us to take reasonable steps to prevent the disclosure of confidential, privileged, or even just embarrassing information that may be included in a document as metadata.
A variety of tools exist to help remove metadata from a document. My current favorite is iScrub, which is made by a company call Esquire Innovations, Inc. <www.esqinc.com>. iScrub seamlessly integrates with Word, Excel, PowerPoint, and Outlook, and allows you to easily remove metadata from your Office documents.
Once installed, iScrub installs a toolbar in your office applications to allow you to access its features. The small toolbar contains buttons allowing you to view the metadata and to scrub your document. If you view the metadata, you can see what information is contained in the file that could be discovered by someone else looking at your file with such a utility.
To clean the metadata from a document, you simply select the scrub document button on the toolbar. You can then choose how much information you want scrubbed. iScrub comes with some basic scrub levels defined. These include choices such as adversary and cooperator. The program also allows a law firm to create a total of five different levels of scrubbing, each with its own custom name. The default levels will likely work fine for most users. For example, if I chose Adversary, the program removed all metadata. If I chose Cooperator, the program removed the metadata relating to comments and hidden text, but it left intact the metadata relating to tracked changes. This information can be handy if I am working on the document with another attorney.
iScrub also allows you to choose the format of the scrubbed document. You can choose between saving the file as a new document, as the original document, as rich text format, as html, or as a PDF. The dialog box also allows you to choose whether to have iScrub apply a MetaSealant. The MetaSealant leaves the document as a Word document, but it prevents anyone from making any changes to it.
The default options (scrub for Adversary, save as a new document, and do not apply a MetaSealant) work best for the vast majority of situations. Simply choosing scrub from the dialog box begins the scrubbing process, which is simple and quick. I have scrubbed a 15-page asset purchase agreement and a 30-page appellate brief. In each case, the program scrubbed each in less than 15 seconds.
Certainly, iScrub worked great while I was working in Word, Excel or PowerPoint. The reality is that having the program installed in Word does not mean that I will use it before sending a document full of metadata to my opposing counsel. iScrub anticipates this problem, however, and provides an elegant solution.
When you attempt to e-mail a Word, Excel, or PowerPoint document as an attachment, iScrub prompts you with a dialog box warning that you are about to e-mail a document containing metadata. The dialog box in Outlook is similar to that described above. The difference between the two boxes is that from Outlook you can choose to scrub all of the attachments at the same level (for example Adversary), to scrub all document file types at the same level (for example all Word Documents as Adversary and all Excel documents as Cooperator), or to prompt you for each attachment to determine the scrub level.
From this same dialog box, you can choose to have the document sent as a PDF or you can apply a MetaSealant. You also have the choice to not scrub the document at all. As an added bonus, for security conscious firms, this choice can be disabled so that all such documents sent via e-mail must be scrubbed.
Finally, for those extra security conscious people, iScrub also includes a feature called Spin Cycle. Spin Cycle allows you to remove metadata from hundreds of files at once in a batch process.
iScrub is an excellent utility. It does one thing and it does it excellently. The program is easy to operate and works quickly enough that it does not interfere with your work. Finally, it protects me from myself in that it makes sure that I scrub my documents before I e-mail them to my opposing (or even friendly) counsel.