Ben Kusmin focuses on complex business litigation in state and federal courts. He has represented both plaintiffs and defendants,...
Sharon D. Nelson is president of the digital forensics, information technology, and cybersecurity firm Sensei Enterprises. In addition to...
John W. Simek is vice president of the digital forensics, information technology and cybersecurity firm Sensei Enterprises. He is...
Spreadsheets have the potential to be an important part of running a legal business, but not all lawyers have the time to fully understand how to effectively use them. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Ben Kusmin about the proper handling and format of spreadsheets, including a thorough review of all content before sending it. He also discusses the Wells Fargo inadvertent disclosure issue and how it could have been avoided.
Ben Kusmin focuses on complex business litigation in state and federal courts. He also created a CLE training program called Excel Esquire to give attorneys the skill they need to successfully navigate in Excel.
How Lawyers Should Use Spreadsheets
Intro: Welcome to Digital Detectives. Reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches; not theory, but practical information that you can use in your law practice, right here on the Legal Talk Network.
Sharon D. Nelson: Welcome to the 83rd edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises.
John W. Simek: And I’m John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is “Spreadsheets as Evidence Avoiding Pitfalls and Seizing Opportunities”
Sharon D. Nelson: Before we get started, I’d like to thank our sponsors. We would like to thank our sponsor SiteLock, the global leader in website security solutions. Learn more at HYPERLINK “http://www.sitelock.com/legal/digitaldetectives”sitelock.com/legal/digitaldetectives.
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John W. Simek: We are delighted to welcome as today’s guest, Ben Kusmin. Ben practices commercial litigation at Windels Marx Lane & Mittendorf LLP in New York City where his cases involve large document reviews, financial accounting experts, and complex discovery motion practice. He created CLE training program called Excel Esquire to give other attorneys the skill and confidence they need to successfully navigate in Excel. He represents frequently to law firms, Bar associations and public interest organizations, and writes about the use of Excel in the practice of law at HYPERLINK “http://www.xlesquire.com”www.xlesquire.com. Thanks for joining us today. Ben.
Ben Kusmin: Thank you John, thank you Sharon. I do love to talk about spreadsheets. It is a very timely topic, given recent events. I would love to talk about.
Sharon D. Nelson: Well, I got to tell you, Ben, I hate spreadsheets. I don’t understand spreadsheets and I think a lot of lawyers probably fall in that bucket as well, so tell me why spreadsheets present such a challenge for me and other lawyers, including litigators?
Ben Kusmin: I think there are a few characteristics of the spreadsheets and a few characteristics of the lawyers that sort of create a perfect storm here.
Sharon D. Nelson: Be kind to me, Ben, be kind
Ben Kusmin: Listen Sharon, you know what lawyers are like, they don’t like to admit when they don’t know how to do something and they are reluctant to ask for help. So that’s part of the problem. The spreadsheets themselves are complicated because our clients’ employees make spreadsheets all day long. It’s their job and they are very good at it and these spreadsheets fall into our laps in the form of discovery evidence on either our own clients’ evidence – evidence that’s produced to us in litigation, and it falls to us to understand the evidence.
So you combine those factors and another factor that I have observed is that lawyers think that it’s a virtue to just grind it out; just grind it out, even if that means spending a few hours churning through something to make it work. When you are working with a spreadsheet editing or reviewing a spreadsheet, that’s usually not the best way to go about it, and attorneys might not realize that spending a few hours doing something that could be done in a few minutes, and not asking for help or asking for training like I say, it’s a perfect storm.
Sharon D. Nelson: It did sound like me, thank you.
Ben Kusmin: I’ve got your number, Sharon.
Sharon D. Nelson: Yes, you do.
John W. Simek: Well, Ben, unlike Sharon I am an engineer undergrad and I have an MBA in Finance, so I like spreadsheets, but I am sure listeners would like to know how attorneys should approach how to review spreadsheets and what are some of the important things they should be looking for?
Ben Kusmin: I guess there are a few overarching rules that I would like to see attorneys apply. The first one is that you shouldn’t rely on Relativity when you are reviewing spreadsheets, when you bring up a spreadsheet in Relativity, there is a viewer window where you can sort of see what’s in the spreadsheet, but there’s a lot that you can’t see in that mode, you can’t get under the cells and see what the formulas are, you can’t expose the hidden content, hidden rows and columns, you can’t undo the filters. There’s just all kinds of stuff that you’re not seeing in that static view that Relativity gives you. You should really be downloading those files in native format and reviewing them within Excel and then you’ll get into all the stuff that’s really happening in that spreadsheet. A spreadsheet is more like a machine than it is a document.
Another thing that I’ve seen lawyers do, is to try to segregate the spreadsheets into one review workflow and then review emails and other documents in another workflow, and what happens when you do that is that you can lose an important context for the emails, for the spreadsheets rather. When people create spreadsheets and they send them to each other in the ordinary course of business, they often send an email explaining what the spreadsheets are for or particular things that they want someone to look at or they might be sending an email like — sorry that spreadsheet I sent you 10 minutes ago was the wrong one or had a mistake, so here’s the corrected version.
If you set up a workflow where you’re only reviewing the spreadsheets, you’re losing all that context and you’re losing the chance to benefit from that context and you’re missing out on all those context clues.
Lastly one thing that you really need to do once you’ve got those files open in Excel is to make sure you’re uncovering all that hidden content which means find the hidden rows and columns, undo the filters if any filters are set and do other things in Excel to make sure that you’re really seeing everything that’s in there and not just looking at the first tab and the first view that pops up, that’s the way a Wells Fargo situation happens – as when you produce a spreadsheet without making sure you’ve looked at everything in the spreadsheet.
Sharon D. Nelson: Ben, in eDiscovery what’s the proper format of production for spreadsheets?
Ben Kusmin: Well, there was a time when parties would tiff out their spreadsheets, which is to say, they would basically print them out into images just like they would an email or a Word document even if that data was never meant to be printed out. So what you would get is this 100 or a 1000-page jigsaw puzzle of images that didn’t really make any sense and it was very hard to review them.
I can remember as a young associate or I should say a junior associate, I went to law school when I was 30, so I don’t think I was ever a young associate, a junior associate sitting at a conference table piecing together that jigsaw puzzle of hundreds of pieces of paper that used to be a spreadsheet and trying to make sense of it. We seem to be well past that now, most parties produce Excel spreadsheets in native Excel form.
But you still get parties who resist doing that, they don’t see the value in it or they don’t want to go to the trouble or maybe they have something to hide, that’s why they don’t want to produce them in native form, which is why I’d like to make sure there’s something in my eDiscovery stipulation where the parties are agreeing ahead of time that whatever Excel files in the production are going to be produced in native format.
John W. Simek: Ben, I’m with you there and we always recommend as much as possible to get the files in native form, but I’m sure you have heard this argument as well too is the opposing counsel a lot of times I will say, well, yeah, but I can’t redact the data then if I do that, if I give you an Excel spreadsheet, we can’t redact it; is that really true?
Ben Kusmin: It’s not and I think you probably anticipated that answer, there’s a number of ways to redact spreadsheets. One way is to redact them right there in Excel, you can target the information that needs to be withheld and deleted or replace each cell with the word “redacted”, so it’s clear what has been redacted and what hasn’t. And there are other clever things you can do, and I’ve talked about some of these things in my blog, you can use the filter in Excel to only display the information that should be produced and then create a targeted printout of that information and produce that.
The key is to be really transparent about what you’re doing, you don’t want to be accused of doing something misleading or making it look like you’ve produced the entire spreadsheet when you’ve only produced a selected view of it and you can do that in the cover letter or explain it in a meet and confer or put that information in the footer of the printout. The key is just to be transparent. So what you’ve done now by not producing hundreds of TIFF images with most of them redacted is you saved a lot of your own time, you saved a lot your client’s money, and probably saved a lot of trees along the way.
John W. Simek: Well, before we move on to –
Ben Kusmin: Let me add one thing about that, the key to redacting Excel successfully is that you want to be consistent at least across a given type of file, so you might have a certain weekly report and you have got several years of these reports but they all need to be redacted, if you batched out these documents to four different reviewers, they’re probably going to redact them four different ways and you’re not going to get a high quality production.
So you want to either give them to one reviewer and have them responsible for redacting all of them or else create a workflow and educate the whole team very carefully and supervise them carefully so that you get the same redactions across all versions of that document.
John W. Simek: Well, great, but before we move on to our next segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is “Spreadsheets as Evidence Avoiding Pitfalls and Seizing Opportunities.” Our guest is Ben Kusmin who practices commercial litigation at Windels Marx Lane & Mittendorf LLP in New York City where his cases involve large document reviews, financial accounting experts and complex discovery motion practice. He created a CLE training program called Excel Esquire. So Ben, isn’t there just software you can buy off-the-shelf on the market that will help you redact spreadsheets?
Ben Kusmin: Well, there is and there isn’t. I’ve seen some products recently that are very interesting and these products ostensibly will help you redact a lot of spreadsheets consistently and do that very quickly and accurately and I guess where I haven’t been totally satisfied with these products is that the ones I’ve seen also want to flatten the spreadsheets which means that they will get rid of all the formulas and links and a lot of that information that’s writing just below the surface and I don’t want to have to give up that information in my adversary’s documents, just to say if I use the software and I have to get rid of all the formulas that means I’m going to have to let my adversary do the same and I feel like I might be giving up some strategic advantage if I can’t look at that content in the other side’s documents.
So, so far I haven’t gone that route of using that kind of software. Having said that if I had a situation where I had a lot of spreadsheets with pure data in them and I needed to redact out certain parts of that data, I think some of those tools could be very useful.
John W. Simek: Well, I know we talked in the first segment about how attorneys just — they try to avoid spreadsheets as much as possible and Sharon being one of them but are there are there any ways that attorneys can use spreadsheets to their advantages?
Ben Kusmin: Well, sure, it’s kind of an unusual story about using spreadsheets to help a client. This is many years ago when I was doing a mixture of commercial litigation and criminal defense and we had a criminal defendant client. Our client was involved in a boiler room fraud scheme in Israel. She was extradited to the United States along with a lot of other members of this fraud and the US attorney wanted to charge her with all of the economic loss for the entire multi-year span of the fraud, even though she only got involved at the very end and if you know anything about federal criminal practice you know that a large part of the sentencing recommendation arises from sentencing enhancements like economic loss. So the more the economic loss the higher your sentencing recommendation.
So this young lady was looking at many, many years in prison based on activity that she wasn’t involved in and that all happened before she got involved. And what I did is I was able to piece together some spreadsheets that were recovered from other members of this fraud which laid out who had done what in the multiple years of this fraud and I was able to put together a master spreadsheet that showed exactly which activity our client was involved in, and demonstrated that it was really a very small percentage of the overall fraud. And we did a presentation to the US Attorney’s Office and based on that we persuaded them to reduce the sentencing guideline for our client.
Sharon D. Nelson: Well, that’s a very good result.
Ben Kusmin: Yeah, it’s a nice chicken soup story.
Sharon D. Nelson: Well, I’ll tell you, Ben, I would never use a spreadsheet as a motion exhibit or a deposition exhibit because I couldn’t understand what it was, but how would you use a spreadsheet as a motion exhibit or deposition exhibit?
Ben Kusmin: The key, Sharon, is to make it easy to read and be laser-focused on the point that you’re trying to make with the spreadsheet. I guess if you’re going to use an email or a memo as an exhibit, you would feel like you had to print out the entire email chain or the entire memo but it’s just not practical to try to print out an entire spreadsheet, especially if it could be hundreds or thousands of pages, and I think most parties and most courts understand that.
So it does make sense in the case of a spreadsheet to print out only what you need to make your point, and that might involve using filters or selecting a certain print area or using other tricks in Excel to print out just what you need to make your point.
Now, of course, you want to be transparent here also, you want to communicate to the court or the witness or whoever the consumer is of this exhibit, exactly what you’ve printed out, so that you’re not accused of doing something deceptive but usually everyone is on board with this approach because it’s just easier to handle the document, and as before you’re saving a lot of money and a lot of trees by creating the smallest print-out you can.
John W. Simek: Well, Ben, do you think that handling spreadsheet implicates the lawyer’s duty of technical competence, which so many states now are beginning to endorse the ABA’s recommendation about that?
Ben Kusmin: John, I really do think it does implicate a lawyer’s duty of competence. Whether you call it a lawyer’s duty of competence, period, or a duty of technical competence or technology competence, I really think handling spreadsheets really does implicate this duty.
A lot of people don’t like Excel, a lot of lawyers like Sharon don’t like to use Excel and you don’t have to use Excel for certain things. You could use it to manage your billable hours or manage a doc review or create exhibits, all kinds of things, but you don’t have to. But, when part of your job is collecting your client’s documents and figuring out which ones to produce and which ones to withhold or it includes evaluating evidence that’s been produced to you by your adversary in litigation, a certain amount of that evidence is going to be in the form of Excel spreadsheets, and you no longer have a choice of not using Excel or burying your head in the sand.
So at this point you no longer have a choice about whether to understand Excel or whether to use Excel or not, part of your job is to evaluate the documents competently; and in this case, it’s going to mean understanding how Excel works.
So the consequences of not understanding can be pretty dire. You might inadvertently produce information, shouldn’t be produced, you might overlook evidence that’s important to your case that’s produced by the other side. You might fail to prepare your own deposition witnesses properly because you didn’t understand one of your own spreadsheets, and then, of course, you can waste a lot of your clients’ money by spending hours, doing things that should have been done in a few minutes. So, all of these aspects of it implicate a lawyer’s duty of competence, I think.
John W. Simek: Before we move on to our last segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today, our topic is “Spreadsheets as Evidence Avoiding Pitfalls and Seizing Opportunities.” Our guest is Ben Kusmin, who practices commercial litigation at Windels Marx Lane & Mittendorf in New York City and is a recognized Excel expert, which we have already firmly established is rare for a lawyer.
Ben, did the recent Wells Fargo inadvertent disclosure have anything to do with Excel? Are there lessons that we should take away from that case?
Ben Kusmin: Well, it’s a very interesting situation and obviously every lawyer’s worst nightmare, especially if you do any kind of discovery work. What happened there, if you haven’t heard about it is that Wells Fargo was responding to a subpoena so they hired outside counsel, a well-known New Jersey firm.
The firm collected a lot of documents, reviewed and produced documents in response to the subpoena and it turned out they produced a lot of documents that weren’t responsive to the subpoena, and it also included a lot of very sensitive financial information of Wells Fargo clients including account information, Social Security numbers, all kinds of sensitive stuff. And the fact of that disclosure wound up in ‘The New York Times’ and quite a lot was written about it, and a lot of fingers pointed in many directions over this, and it was an epic inadvertent disclosure.
I was very interested in the situation just as an eDiscovery practitioner and I took a deep dive, I read all the affirmations that were filed around that disclosure. I went to a hearing about it. And at the end of the day, it still wasn’t really clear exactly what mistakes led to this inadvertent disclosure, but I think it was a combination of Relativity mistakes, and Excel mistakes, and probably some communication mistakes.
So I guess to break it down, the lawyer who did the inadvertent production, one of the things that she said to explain what happened was that she had reviewed a thousand documents and didn’t realize that there were more documents to be reviewed and somehow, those additional documents got produced. That sounds like Relativity to me, Relativity loads the first 1000 documents and then you have to click a couple of buttons to load the additional documents.
Sharon D. Nelson: Well, that clearly would implicate the duty of competence, I would think.
Ben Kusmin: Yeah, failing to understand how your document review software works is certainly a problem. So when I said there’s probably an Excel aspect to this, it occurs to me and this is just conjecture but even in the course of reviewing a thousand documents you would probably come across some of those Excel spreadsheets and what I think is possible is that some of them were produced because the attorney didn’t realize that they contained that confidential information.
This gets back to what I was saying before about downloading the document in native form, un-hiding rows, un-hiding columns, un-filtering the data to make sure you really understand what’s in there. It might be that the receiving party was more savvy about Excel and they were able to expose all that information, where the producing attorney didn’t realize what it is they were producing.
Again, this is just conjecture on my part but that’s certainly the kind of thing that goes wrong when lawyers don’t really grasp the documents that they’re looking at and producing. And I said there was a communications aspect, and what I meant by that is, if you have a good process and you have an open line of communication with your client and an open line of communication with your eDiscovery vendor, this kind of thing usually gets caught before it goes out the door.
I like to use the buddy system when I’m producing documents, especially if I’m the only one who’s reviewed the documents, the only one who’s tagged them, dealt with the vendor, put the CD together. If I’m the only lawyer involved in any of that, I want another lawyer to look at what I’ve done and at least look at the CD to make sure I’m not making some obvious mistake.
These are the kind of things that can prevent an inadvertent production like this. So this gets you back to the duty of technology competence for sure and that duty certainly includes being familiar enough with the programs you’re using not to make these kinds of mistakes I think.
John W. Simek: Well, Ben, as a final question, can you tell our listeners how can attorneys learn more about Excel and using it?
Ben Kusmin: Well, there are a lot of things you could do, John. On a day to day basis when you are struggling with Excel trying to figure out what a formula means or trying to figure out how to do something with that document, the first thing I will usually do is just Google my question and I will probably find that someone like me has created a five-minute YouTube video explaining exactly what it is I am trying to do. More generally, I think lawyers probably need to ask for better training, and that might mean going to your professional development folks and ask them to set up a CLE or ask them for more training.
And sometimes it’s as simple as picking up the phone, calling IT and asking them questions rather than trying to go it alone.
Sharon D. Nelson: Well, we want to thank you so much for all of your help today in illuminating this subject, maybe not for me, but I bet for some of our more savvy listeners. And I can see that if I ever were to need to do any of this again, I would need to educate myself thoroughly or I would be held before the disciplinary folks. So thank you for adding some levity to the subject as well, and of course, I set myself up as a soft target so thanks for having fun with me on that.
Ben Kusmin: Thank you, Sharon, I enjoyed it.
John W. Simek: Well, that does it for this edition of Digital Detectives, and remember, you can subscribe to all the editions of this podcast at HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on Apple Podcasts. If you enjoyed this podcast please rate us on Apple Podcasts.
Sharon D. Nelson: And you can find out more about Sensei’s digital forensics technology and cybersecurity services at HYPERLINK “http://www.senseient.com” senseient.com. We will see you next time on Digital Detectives.
John W. Simek: Thanks for listening to Digital Detectives on the Legal Talk Network, check out some of our other podcasts on HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com and in iTunes.
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