Ian Lopez, Legaltech News
The data set is relatively small, but
other factors may push answers beyond Election Day.
Hillary
Clinton. Shutterstock Shutterstock
Electronically stored information (ESI) has a tendency to resurface at
unexpected times and in the least likely of places. The same can be said of the
emails scandalizing the 2016 presidential campaign of former Secretary of State
Hillary Clinton.
Since this past Friday, when emails possibly linked into the FBI's
investigation of Clinton's use of a private email server resurfaced in an
unrelated investigation, the world has anxiously awaited insight on the
agency's review of the approximately 650,000 emails in question. And though the
2016 presidential election is less than a week away, the FBI is predicting that
the emails' review, despite the aid of technology in filtering out duplicates already reviewed in the previous FBI
investigation, could possibly extend beyond Election Day .
While the amount of documents in the review set in question—650,000—may
seem a hefty number and the resurfacing of more information pertinent to the
previous Clinton email investigation may alarm the public, these realities
aren't anything unusual in the world of e-discovery. According to Adi Elliott,
market planning manager for Epiq Systems, from the "e-discovery
perspective" of this situation, "we would call this a pretty
small" or "average" situation, with "nothing particularly
out of the ordinary or complex."
So what is the average e-discovery situation? In terms of scope, the amount
of documents involved in a civil litigation can vary. Elliott pegs the 650,000
that the FBI must review as within the "fairly average range," while
slating the "low end" as 300,000 and the "high end" as
"in the millions," such as during mergers and acquisitions
(M&As).
But a government or criminal investigation faces different realities than
those in civil litigation, such as government clearance for reviewers and the
potential for finding a "smoking gun" amid a large document set,
notes Sutherland Asbill & Brennan partner and Electronic Discovery
Institute president Robert Owen.
"In a typical commercial matter, we're probably not going through
every single email. We're probably going to apply search terms to filter
[relevant emails] out," Owen explains. "Average civil cases don't
turn on documents, so you're not going to be looking at every document, and you
probably aren't going to go to the level that you would in … the Clinton email
case."
Untangling the Mechanisms of Electronic Review
In attempting to understand the timeline and challenges faced by the FBI in
reviewing the newly-emerged document set, it's essential to get an idea of how
review is generally conducted. The process might seem complex, especially given
the amount of approaches rendered available by various review technologies, but
underlying all of them are a few core sets of realities faced by any review
team.
The first step for electronically stored data is establishing a review tool
that can categorize the data. From here, the review team would want to limit
its review to relevant documents—in this case, presumably, the emails that
passed through Clinton's private server. Review software can further limit the
set needing review by applying keywords (e.g., in this case,
"confidential"), then setting limits within the set (such as emails
sent between 1/2014 and 4/2014). Doing so allows for the data set to be reduced
to items that are more likely to be relevant.
From here, reviewers are able to categorize their information. Often, to
speed up the process, they will use tools such as data analytics and machine
learning and techniques such as deduplication to filter out duplicate emails.
This provides a clear number of the amount of documents that need to be
reviewed for an investigation and allows the review team to determine how many
reviewers to use.
Epiq's Elliott estimates that a "fairly competent reviewer can review
60 documents in an hour."
Breaking down the numbers a bit further, eTERA Rev1ew One managing director
Vazantha Meyers says that, in her experience, it would take a reviewer about an
hour to get through 50 documents. At this rate, she says that if she had to
cover, say, 50,000 documents, it would take about 1,000 hours. Before staffing
the review, she would first decide how long she wanted to take for the process
before staffing it. "If I know I had to do this in two weeks (10 days),
then I know I need to put 163 reviewers at it, which is what you sometimes have
to do."
The Clinton Difference
Of course, the realities presented by the Clinton investigation are
different than those typically associated with civil litigation, as reviewers
need to have certain security classifications, could have to redact certain information
and are trying to piece together a story from a vast amount of communications.
As Owens puts it, "It's really uncharted territory, as far as I'm
concerned, as far as you could manage the process."
Still, reviewers likely won't need to review all 650,000 emails, as many of
them are quite possibly day-to-day communications on the private computer of
Clinton aide Huma Abedin and husband Anthony Weiner. "I'm sure, like
everyone else, the Weiners get a billion of irrelevant emails," Owen says.
Meyers says that for a case with 600,000-plus documents, she normally would
"go out and grab a bunch of contract reviewers and attorneys and train
them on protocol with some guidance" and supervision. However, in the
Clinton investigation, she says, "This is a matter of national security,
so the number of people they had to put on here [for review] would have to be
limited."
Yet the public is calling for more information before Election Day, at the
same time criticizing the FBI for announcing this latest investigation so close
to the date. And, as the Wall Street Journal reported on Oct. 31, with the help of technology in use by the
agency, the "most relevant of the trove of 650,000 emails" could be
identified by Election Day, though it will likely take longer to review them.
"It's going to take a few weeks at least just to get this data in the
shape where it can be reviewed," Special Counsel e-discovery project
manager Brian Hall tells Legaltech News. He points to the likelihood that some
of these emails could very well involve foreign policy, national security and
executive privilege, thus requiring "a very rigorous privilege examination".
Similarly, John Rosenthal, chair of Winston & Strawn's e-discovery and
information governance practice, says that people demanding this information so
soon is "unrealistic, because the obligation here is to not just make the
information available but to figure out how it fits into an overall
investigation."
"In a normal investigation, [the FBI would] go cautiously and, while
they might throw a lot of resources into trying to turn it around quickly and
publicly announce it, it'd be highly unusual to be able to do that in a number
of days," he adds.
Regarding the public outcry that some sort of information about these
emails be surfaced for the public by Election Day, Owen adds that "the
proliferation of email and electronic devices in our lives has vastly
complicated civil litigation" as well as criminal investigation.
"It's just now in this particular case that complexity and those
challenges are coming to the public's attention."
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