Unitization: E-Discovery’s Achilles’ Heel

September 5, 2014Articles The E-Discovery Stage Blog

By now, it is common knowledge that an e-mail thread is generally organized with the oldest string of the communication at the end of the document, and the most recent string of the communication at the beginning of the document. It all makes good logical sense, right?

The hidden Achilles Heel of e-discovery is a set of ESI that is not so orderly and coherent. Ensuring that you do not fall for this common e-discovery trap is simple, and hopefully with some awareness of the issue from the outset, you will not fall prey to an un-unitized, and therefore functionally useless data set, whether you are reviewing electronically stored documents as part of the discovery phase of litigation, or simply managing the records of your business in the ordinary course of things.

According to The Sedona Conference® Glossary: E-Discovery & Digital Information Management (Fourth Edition), unitization is defined as follows:

Unitization – Physical and Logical: The assembly of individually scanned pages into documents. Physical Unitization utilizes actual objects such as staples, paper clips, and folders to determine pages that belong together as documents for archival and retrieval purposes. Logical unitization is the process of human review of each individual page in an image collection using logical cues to determine pages that belong together as documents. Such cues can be consecutive page numbering, report titles, similar headers and footers and other logical indicators. This process should also capture document relationships, such as parent and child attachments.

Imagine having to reconstruct tens of thousands of pages of e-mail communications to understand the logical flow and chronological progression of the communications because the pages of the production were not electronically produced in the proper order? What about with the added pressure of a looming deadline for subpoena compliance, or in the throes of an internal investigation or regulatory audit? In the same vein, picture a contract produced in the course of discovery, one page at a time in no logical sequence, throughout a broader ten thousand some odd page production. More time will be spent trying to ensure that you have a complete copy of the contract than it takes to review the document itself, and there is never really any assurance that you have the entire document at your disposal.

If you haven’t experienced attempting to review an un-unitized electronic document production, or have been forced to spend precious time searching for a haphazardly stored digital record first hand, I hope you never have to. It is a nightmare. It can drive up litigation expenses and stifle productivity for large swaths of time that you simply do not have to spare.

Here are some simple best practices to ensure that you are not immobilized by a unitization issue involving ESI, whether you are involved in litigation where ESI is an issue simply managing the day to day records of your businesses:

In Litigation:

Have a detailed protocol for the exchange of ESI, and work to ensure that it is part of the very first Case Management Order entered by the Court so that it carries the full force and effect of a Court Order. Make the formatting of ESI a priority at the initial meet and confer with your adversary. If you don’t raise it, it will likely be overlooked. It is much harder and more expensive to undue a production of improperly formatted ESI after the production occurs than it is to get out in front of the issue from the very start.

In The Storage of Business Records:

When electronically storing documents, take the extra time and care to ensure that they are placed in electronic folders in some logical way. Better yet, invest in software that helps index your digital records for you. If the records are being scanned from paper copy originals for digital archival, ensure completeness, and establish a uniform file naming protocol. With respect to E-mails, especially for regulated industries, make the investment in a good e-mail indexing and archival system. If you have an obligation to preserve, you have an obligation to preserve in a way that facilitates accurate retrieval. After all, what is an obligation to preserve if you cannot find what you are looking for when called upon?

It all seems very simple, but experience has shown that there is sometimes a shocking lack of care demonstrated with respect to the basic organization of digitally archived documents, as if the intangible "feel" of digitally stored information should somehow result in it being treated different than carefully color coded and neatly collated paper copy records. Ask the litigant unable to establish the basic foundation necessary to admit a crucial e-mail communication into evidence at trial or a business facing a regulatory audit that is unable to locate a complete copy of required documentation in its digital archives whether they would rather have dealt with this issue upfront, as opposed to trying to correct problems after the fact. I am absolutely certain that the answer will be a resounding yes.