Doug Austin is an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal...
Brett Burney is Principal of Burney Consultants LLC, and focuses the bulk of his time on bridging the chasm...
Sharon D. Nelson, Esq. is president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. Ms....
John W. Simek is vice president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. He...
Audio and video files have become increasingly relevant in today’s legal matters, and lawyers need to know how to best handle this information. Digital Detectives Sharon Nelson and John Simek welcome eDiscovery experts Doug Austin and Brett Burney to discuss how to collect, preserve, search, and review audio/video information and then effectively present it in court.
Doug Austin is an eDiscovery thought leader and blogger.
Brett Burney is principal of Burney Consultants LLC.
Digital Detectives – Zooming Into 2021 with Audio/Video Discovery
Intro: Welcome to Digital Detectives. Reports from the battlefront. We’ll 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 Nelson: Welcome to the 120th edition of Digital Detectives. We’re glad to have you with us. I’m Sharon Nelson, President of Sensei Enterprises, a digital forensics, cybersecurity and information technology firm in Fairfax, Virginia.
John Simek: And I’m John Simek, Vice President of Sensei Enterprises. Today, on Digital Detectives, our topic is Zooming into 2021 with Audio/Video Discovery.
Sharon Nelson: A very clever title, I like it. Before we get started, I’d like to thank our sponsors. Thanks to our sponsor, Logikcull, Instant Discovery Software for modern legal teams. Logical offers perfectly predictable pricing at just $250 per matter, per month. Create your free account at any time at logikcull.com/ltn. We’d also like to thank our sponsor, pinow.com. If you need a private investigator you can trust, visit pinow.com to learn more.
John Simek: Today, we’re lucky to have two of our favorite guests. Both of our friends, Brett Burney and Doug Austin. Brett is Principal of Burney Consultants, LLC and focuses the bulk of his time on bridging the chasm between the legal and technology frontiers of electronic discovery. He is also the co-author of the 2019 eDiscovery Buyers Guide, which can be downloaded for free at www.ediscoverybuyersguide.com. Brett is also very active in the Mac-using lawyer community, working with lawyers who want to integrate Macs, iPhone & iPads into their practice. Doug Austin is an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting, and technical project management services to numerous commercial and government clients. Doug has published a daily blog since 2010 and has written numerous articles and white papers receiving the JD Supra Reader’s Choice Award as the top eDiscovery author for 2017 and 2018 and a JD Super Reader’s Choice Award as a top cybersecurity author for 2019. Doug has presented at numerous webcasts, events and conferences including Legaltech New York, ILTACON, Relativity Fest, University of Florida E-Discovery Conference, Masters Conference and many local and regional conferences. You know, it’s really super to have both you guys with us tonight.
Brett Burney: Yeah, John and Sharon, it’s always fun to be with both of you and it’s great to be here with Doug as well.
Doug Austin: Yup, and same here. Seems like old home week once again. I’m glad to be here as always, Sharon and John.
Sharon Nelson: Well, now that the — all the cool kids are in the clubhouse. I think that a lot of people don’t understand how prevalent audio and video are becoming in ESI collections today. So, Doug, how prevalent are they?
Doug Austin: Well, Sharon as you know, Brett and I were part of the assets(ph) webinar of the exact same name as this podcast as Zooming into 2021 with Audio/Video Discovery along with Ashley Griggs of NICE nexidia last week and Brett covered several sources of audio and video files that have really mushroomed the prevalence of audio and video in the ESI collections today and honestly, a couple of which I hadn’t thought of. When you think of it, there are and I’m going to sound like Carl Sagan here for a moment. Billions and billions of audio and video files out in the world that are potentially discoverable. Most of us have a mobile device today where audio and video files can be created literally at the push of a button. We post many of these files on social media platforms like Facebook, Twitter, Instagram and YouTube and because of the pandemic so many more of us are participating in web conference meetings, using platforms like Zoom where many of these meetings are being recorded because we can. Who knows even this podcast may someday be discoverable, you never know. So, I think you’re really going to see potentially discoverable audio and video files in just about any case that involves ESI. The only question really I think is how much will there be.
John Simek: Well, Brett, as you know, we do digital forensics so we get involved in a lot of electronic evidence pretty much every day, so this is not a test for you, but tell our listeners, what kinds of audio and video files are found in discovery because I’m sure as Doug mentioned, they’re really not aware.
Brett Burney: Yeah, you know, it can really be a across the board. I mean, John, I very much enjoy geeking out with you.
We can go really deep into like the technicalities of each individual kind of file types that there are but it really is dependent upon the type of matter and I don’t mean to say that there’s a specific kind of audio file or video file for a specific matter because the more that I experience this, I find that in almost any kind of a litigation matter, there’s probably going to be some kind of rich media like this audio and video and it can just come from a variety of different places some of what Doug just mentioned. I’ll say one of the most prevalent areas that I see this arise like discoverable audio or video files mostly audio is like voicemails. In fact I was involved in a matter not too long ago where they had a couple hundred thousand voicemail recordings. Today, we have voice over IP systems and another — what do they call them, unified messaging systems I think, John, where they have like — they record all the voicemails and in some cases, they attach those files, those audio files to emails and people can listen to them different ways and most of the time, people are familiar with like the mp3 audio file. That’s a compression mechanism that that has been used for good and for bad, I guess you could say over the years but it’s a very small file that can hold a lot of information.
There’s all kinds of different ways you can compress some of this audio in there, but it can come even from like audio files off of phone just like you were talking about John when you guys take a phone, sometimes people just record their audio into like a voice memo recording or something along those lines and all of that can be exported out and then quickly just what Doug just mentioned at the end there, Zoom meetings or team meetings a lot of times those can be recorded as m4v files or video files with audio or they can be separated out. So, it really kind of runs the gamut. It’s not that difficult, but it’s certainly something to be aware of making sure you have the right tools to be able to play some of those audio files when you need to listen to them.
Sharon Nelson: Well, Doug, how prevalent today is audio and video in litigation matters?
Doug Austin: Well, to piggyback on what Brett has talked about. We’ve already talked about how prevalent it is in the ESI collections and certainly the types of files, but the real question is how often does it actually apply is important to the case. So, before our webinar last week, I decided to take a look at the number of matters where there are disputes involving audio and video and discovery and I did some searches in Kelly Twigger’s eDiscovery assistance site which has over 13,000 lifetime federal and state case law opinions and ads as many as several hundred cases a month, that’s really the definitive source for eDiscovery case law out there. And I decided to look at a five-year period from 2015 through 2019. The number of audio and video disputes started at 41 in 2015 and it rose all the way up to 243 in 2019 so that’s a six-fold increase over the last four years of that timeframe. Certainly speaking from personal experience and I suspect that would say the same consideration of audio and video files from a responsiveness standpoint has pretty much become a routine part of discovery in every case that I’ve been involved with and that wasn’t the case just a few years ago. So, I really think it’s prevalent pretty much in every case today.
John Simek: Building a little bit on that, Brett, you know, kind of our experiences and I tend to agree with Doug, but there was a day not too far in the distant past where everyone kept clamoring for “metadata, metadata.” You know, we won’t metadata off all these electronic files, but now that we’re talking about this great growth of audio and video information, I’m thinking that it’s probably a lot more relevant to cases than metadata was in past cases, should attorneys be collecting that all the time or are they required to collect those and preserve those types of files, what are your thoughts?
Brett Burney: Well, I would say the short answer, yes. If it is relevant and not privileged. Just like anything else I kind of stole that line from Craig Ball because I remember a blog post he wrote about is social media, do you have a duty to collect and preserve social media for example. And the answer is yes just like any other kind of electronically stored information today whether it’s stored on a hard drive or stored on a Cloud computer or I think at the end he’s like whether it’s stored on a pulverized piece of pine tree. I mean, the idea is like audio and video today is going to probably be electronic unless you’re trying to I guess produce audio from a wax cylinder or something, I don’t know how you would do that but I mean, any kind of an audio or video today is going to be electronic and it certainly carries information and so therefore it is electronically stored information and so just like anything else if it is relevant to the matter and it’s not privileged or confidential or protected by some kind of an aspect like that then, yes. The short answer is you do need to consider it, it does need to be a factor.
I still unfortunately run into legal professionals that either — they either don’t think about it because it’s just not something that they’ve thought of in their years of practice maybe or in the past going sort of to your point, John in the past, there would be people that would argue that it’s like, “well, this isn’t like real evidence.” This is somebody recorded themselves or something. That kind of an argument just certainly won’t fly today. So, in general, you do have it, if it is going to be relevant. Just quickly another thought that comes up because we just — Doug and I kept thinking about this like today like even unfortunately in these sort of unusual scenarios and environments in which we live like body cam footage. And a lot of video footage today from mobile devices are becoming very relevant to some of these matters or to some of these issues some of these problems that arise that — it’s unfortunate of course certainly but some of that information is accessible in that way and so there is a duty there to preserve that information.
John Simek: So, we don’t have to worry about VHS and beta.
Brett Burney: Yeah. You don’t worry about that.
Sharon Nelson: One thing I know that has cropped up a lot, Brett is that people complain if they’re defending somebody that they have to watch hours and hours and hours of potentially of videotape and that costs a lot more money and of course the courts aren’t pleased about having to fund it so that’s a big issue on the list serves is how that’s increased their workload. What’s important to know when you’re collecting and preserving audio files because it seems to me like every time I get someone calling about that, they don’t have a clue as to what step one might be.
Brett Burney: Yeah. Well, my first thought quickly on this and it goes exactly to what John that you were just saying there even about the metadata, it still goes back to some of that. For example, in one case that I was on where they had a collection of voicemail messages, but somehow it was either copied of a copy of a copy which still sounded good but unfortunately one of the times when they made that copy, they stripped out some of the metadata. So, like you didn’t know whose mailbox, voicemail box it came from, you didn’t know the phone number that it came from, you didn’t know the date or the time, that kind of information. I mean, some of that is very important and relevant when you are going to start reviewing that. So, just like anything else, John to your point earlier when you are collecting electronically stored information that you should certainly consider that like think about how is it that I’m going to ultimately review this and produce it and having some of that metadata in order to filter it or sort it chronologically, whatever the case may be or call it down to like a certain voicemail box within a certain date range, that’s very important on there and then the other thing quickly, Sharon and I would just say when you’re faced with the knowledge, you’re going to have to review and produce audio and video to just kind of keep that end in mind to the idea of like, “okay, well this isn’t what I’m used to reviewing maybe like in a relativity database or something else like a textual file” so you’re going to have to have some other tools to do that, you’re going to have to consider what other platforms that are going to allow you to either search this if you want to have a textualized version of this or an easy way to listen to it. Can you listen to it inside a database or do you have to like copy it out somewhere? So, some of those concerns to me are some of the first things I start thinking of.
John Simek: But before we move on to our next segment, let’s take a quick commercial break. Does your law firm need an investigator for a background check, civil investigation or other type of investigation? Pinow.com is a one of a kind resource for locating investigators anywhere in the U.S. and worldwide. The professionals listed on PInow. Understand the legal constraints of an investigation are up to date on the latest technology and have extensive experience in many types of investigation including workers’ compensation and surveillance. Find a pre-screened private investigator today. Visit www.pinow.com.
Trying to cut costs? You’re not alone. In today’s climate, a five-figure eDiscovery bill per month is steep. Don’t pay that. Use Logikcull to reduce expense and control your discovery process. Get started today for only $250 per matter and they’ll waive migration costs from competing platforms. For more information, visit logikcull.com/ltn.
Sharon Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today, our topic is Zooming into 2021 with Audio/Video Discovery. Our guests are Brett Burney and Doug Austin. Brett is Principal of Burney Consultants, LLC and focuses the bulk of his time on bridging the chasm between the legal and technology frontiers of electronic discovery. Doug Austin is an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting and technical project management services to numerous commercial and government clients.
John Simek: Well, Doug, I know one of the things that Sharon didn’t mention in the introduction there is that I always consider you to be a real case law guru. So, can you let our listeners know a little bit about what the courts are saying about discovery of audio and video files?
Doug Austin: Well, John, more and more they’re saying that the significance of the audio and video evidence outweighs the burden of discovery of that evidence and sometimes, the handling of audio or video files can literally make or break your case. I have actually covered two cases very recently in eDiscovery today that illustrate that point. In the first case, Talbot versus Foreclosure Connection, the defendants recorded a meeting with the plaintiff unbeknownst to the plaintiff and then when the plaintiff found out about it, the defendant stated that recording was deleted after the unemployment matter with the plaintiff concluded even though the complaint had been filed by then. Only when the court told the defendants they would be sanctioned did they ultimately produce the audio recording, but regardless of that, the court calling the defendant’s actions a shell game still issued a default judgment and awarded most of the amounts sought by the plaintiff and added fees and costs on top of that. So, that truly was kind of a makes the case type of scenario in that case. In the other case — the other case was Tate versus City of Chicago, which is a case about a civil rights action against the City of Chicago for alleged unlawful search of homes including the plaintiff’s home and CBS investigated the case issuing news reports in a documentary. The defendants subpoenaed notes, communications and audio video outtakes from CBS under Rule 45 which CBS tried to quash and the court granted CBS’ motion with regard to notes and communications, but they denied it regarding the audio/video outtakes. Saying the relevance of the audio/video outtakes outweigh the burden even though the burden could be somewhat significant.
So, I think this case shows just how audio/video evidence can be relevant enough to outweigh the burden of reviewing and producing it. Sometimes even more relevant than other forms of ESI and so these are a couple of very recent examples of just how important audio and video evidence can be in litigation today.
Sharon Nelson: Well, there’s been such a tidal wave of audio and video files recently. What are some of the biggest challenges to discovery of those files?
Doug Austin: Well, Sharon, certainly one of the biggest challenges is the imperfection of human speech itself. Our communication is much more informal in audio files than it is in written communication. Me personally, I have an um problem when I communicate verbally and I literally have a sign at the bottom of my monitor which says don’t say um for podcasts and webinars and things like this to help me try to keep those at bay and a lot of us have challenges like that, which make it much more difficult to search audio files for relevant information it just kind of gets broken up a bit. Some people speak softly, some people mispronounce or they stumble over words and people use shorthand language like traders on a trading floor or they’ll use slang or they’ll use acronyms. Some of us speak with accents that can be difficult to understand. In Texas for example, some of us tend to pronounce oil like all in business like budiness(ph) and we all know that people from Boston tend to leave out the cars(ph) when they park the car. So, we have those challenges and of course there’s also challenges we have that we try to minimize, but can’t always like background noise or static.
Certainly, one of the things we talked a little bit about metadata is there can be often a lack of useful metadata associated with audio and video files. So, you often have to rely on your ability to search and review the audio itself to determine if it’s relevant or not. Finally, and certainly, I know this all so well because I’ve done a number of thought leader interviews where I’ve had to transcribe recorded interviews. They’re very time consuming to review and transcribe on average; it takes a reviewer about three hours to review each hour of audio. So, it can be burdensome, very burdensome to discover audio and video files as well. So, there’s just a lot of challenges with it.
John Simek: Well, Brett, I love Doug’s impersonation of someone from Boston, and I can certainly understand.
Sharon Nelson: He’s so much better at the Texas impersonation.
John Simek: But I can certainly understand the challenges in dealing with audio files. So, can you kind of give us your thoughts on some of the main methods to review and search audio files even given some of these challenges?
Brett Burney: Yes. One thing that I like to point out all the time even though it is going to sound a little silly, but it still bears the time to say it is that you can listen to audio files and there’s one thing about listening to Doug’s point about hearing what is meant to be an aural, A-U-R-A-L experience, but when we talk about reviewing and searching audio files, what we typically mean is somehow transcribing that audio file into editable text. Not always but that’s generally what we’re talking about here. So, in that area, I sort of try to simplify this into three main methods that at least I’ve seen I’m sure there’s other ways but number one is the one we’re most all familiar with probably the most I call it, human transcription. This is somebody could sit there, have the audio file in front of them, they hit play and they sit and they listen for a few seconds and then they type out what they hear. We’re familiar with this obviously of course from court reporters or similar aspects where we are transcribing from — a human person is transcribing what they hear into editable text.
Now, the second method is machine transcription. Instead of a human transcribing the audio, we are asking a computer to listen to human spoken word and then do the best job they can to transcribe that audio into editable text. We can think of it on a personal level like with Dragon dictation or something like that. That’s always been the dream. Now, machines are getting better at this, but anybody that’s tried Dragon dictation knows how frustrating that it can be sometimes, but machines are still not the best, they’re not the greatest at all the nuances of spoken word exactly some of the things that Doug was mentioning. We’re usually looking at between like 40% to 65% word for word accuracy for machine transcription. The other way I talk to people about this is think about the voicemail transcription on your mobile phones because we know who’s calling many times, we can make it out, but sometimes it’s just hilarious because it’s a machine trying to transcribe that.
And then the third and last category is what I generally call phonetic indexing. Now, this is where a computer is being used as well, but it’s not listening for words, it’s actually listening for phonetic sounds that make up those words. So, this is going to require everybody to kind of think back to their third-grade experience. We’re talking about here is phonemes. The phonemes of a word. It’s similar to syllables, but a phoneme can be a smaller than a syllable and my quick example is think of the word talked, in the past tense even with my Texas accent, I guess. T-A-L-K-E-D, talked. Now, when I say, “he talked to me” everybody understands what they hear, but if you’re trying to put that into the individual phonemes, it’s almost two different phonemes, it’s T-O-K for the first part and then a T on the end. We don’t usually say “talk-ded,” we say “talked” which is like T-O-K like TikTok, and then T on the end, talked. That’s really what it sounds like and a phonetic index a computer is listening for those individual sounds and then breaking it all down into those phonemes rather than attempting to rebuild full word. So, we have human transcription, machine transcription and then phonetic indexing.
John Simek: So, is that how you get to lobster dinner?
Brett Burney: I can actually understand you, John. That’s what’s great about it. I can understand what you’re saying, but the point comes is that in some cases, if a computer is trying to machine transcribe that, who knows what in the world that words that they would come up with to put down when you’re saying lobster.
Sharon Nelson: Well, that was a great explanation though of the three main methods. So, what’s the best method to review audio?
Brett Burney: So, the easy way to say that of course, Sharon, of course is it always depends. Again, another quick thing that I just want to emphasize again is audio is meant to be heard and we are always attempting to squeeze it into editable text.
And another way to think about this as well again it’s kind of simplified, but it’s worth repeating. People communicate differently when they are talking versus when they are typing an email and so it’s important to kind of keep that in mind and why it’s important to better understand that there are differences to do. In some cases, human transcription makes complete sense if you only have a few files and you really want the absolute best editable text transcript and you’re willing to pay for it because it’s not like an hour of audio takes an hour of transcribing, it usually takes about two or three hours because we know we have to stop and go back. So, it usually is much more expensive. Machine transcription is typically the lowest cost, but it is also the lowest accuracy. Again, think back to Dragon dictation or your voicemails on your phone.
So, if you aren’t concerned about accuracy, then machine transcription typically is okay and, in some cases, I joke, but in some cases, it may be perfectly fine. So, in my opinion, and this goes back to NICE Nexidia and what Doug and I have been talking about. From my experience that I’ve seen phonetic indexing offers the best of all worlds. It’s a little more expensive than machine transcription much lower still though than human transcription, but phonetic indexing is much more accurate than machine transcription and the last two things quickly on that if you have a massive number of files phonetic indexing is usually a little bit quicker because again, they’re not having to find individual words and transcribe words, they’re just indexing the phonemes of those words and Doug just barely touched on this. If you have a lot of audio files that contain industry specific terms or technical terms or acronyms then phonetic indexing is going to mean to be much more accurate. Here’s a quick example I use. The letter is I, D and S like I don’t know what that would stand for but this is an example like –
John Simek: Intrusion detection system.
Brett Burney: Okay. Thank you, John. I knew you would save me there, but like when we are talking this — when I talk to you, I’m not going to say intrusion detection system every time, I’m going to say IDS, but if you say it quickly, it’s like IDS, IDS, IDS, it could come out as ideas, I-D-E-A-S. Anyway, just to give you a quick idea like if you’ve got files that have a lot of technical terms or industry specific type terms like that, then the phoneme approach may be a little bit more accurate, much more accurate many times than a machine transcription.
John Simek: So, the last question for both you guys is how do you expect the discovery of audio and video files to evolve in the future and I kind of see this as — like today, we’re doing more examinations on mobile devices than we are in actual computers. So, are you seeing kind of a trend a particular road map if you will as far as discovery of audio and video files goes for down the road?
Doug Austin: Absolutely. I guess they say necessity is the mother of invention and certainly the necessity is going to be to discover audio and video files and it’s going to continue to grow and I think it’s going to grow significantly. When Brett talked about the human transcription method, I refer to that as the brute-force method. It’s just literally — I mean, it’s just hours and hours of pounding your way through of audio files to determine what they say and it can be effective, but it sure is costly and time-consuming. So, to me, I think the application of advanced technologies like phonetic indexing that Brett talked about it’s going to become more and more important to address that necessity. Audio and video files are routinely relevant litigation today and the volume of the audio and video ESI is multiplying. So, I think organizations are going to have to incorporate advanced technologies into their workflows to address the increased demand. They can’t use the brute-force method to keep up and they can’t just bury their heads in the sand anymore when it comes to audio and video discovery and hope it will go away. So, that’s what I think and I think you’re going to see a lot of it, a lot more advanced technologies incorporated into a company’s workflows. Brett, what do you think?
Brett Burney: Yeah. No question. Completely agree with you, Doug. One of the things that I know technologies like Nexidia are being used for, for example is every financial call typically — most financial — like if you call your financial broker and ask for a trade or do that like almost every call has to be recorded, that’s part of Dodd-Frank and other regulations like it’s those kinds of industries and those requirements I think that are going to be driving this even more to the extent now to where those industries need to record this and they need to be able to search it quickly, be able to find that kind of information and again I hate to kind of keep bringing up the current events, but we have all seen and will continue to see I am confident that video and audio recorded by individuals on mobile phones, John to like to your point and just the fact that kind of information is important and then lastly to Doug’s point about the fact that we’re all working from home virtually, it’s recorded Zoom meetings today, it’s recorded webinars, it’s all of this today that we’re just being able to consume this kind of information through these different mediums.
And so, it’s no question. It’s definitely going to be something that we’ll be seeing more and more often.
Sharon Nelson: We certainly will and I really want to thank you both for being our guest today to enlighten us Brett and Doug and to riff off one of your remarks. Doug, what should I say about you, too? I know what you mean. We all have speaking habits that we wish we could get rid of and they don’t go away very easily, but you guys are bright, you’re witty, you’re fun and you’re full of knowledge and thank you for passing all of that knowledge on to our listeners. I know everybody learned something and we’re very grateful. Thank you.
Brett Burney: Thanks for having us Sharon and John and great to be with you, Doug.
Doug Austin: Yup. Great to be with you, Brett and as always, thanks Sharon and John. As always, this was a lot of fun.
John Simek: Well that does it for this edition of Digital Detectives. And remember, you can subscribe to all the editions of this podcast at legaltalknetwork.com or an Apple Podcast. And if you enjoyed our podcast, please rate us on Apple Podcast.
Sharon Nelson: And you can find out more about Sensei’s digital forensics, technology and cybersecurity services at senseient.com. We’ll see you next time on Digital Detectives.
Outro: Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on legaltalknetwork.com and in iTunes.
Sharon D. Nelson and John W. Simek invite experts to discuss computer forensics as well as information security issues.
Doug Austin and Brett Burney give best practice tips for audio and video discovery.
Judy Selby gives a comprehensive overview of the many uses and risks associated with biometric information.
Cybersecurity expert Mike Maschke explains how penetration tests help lawyers protect themselves by identifying weak points in their security systems.
Maura Grossman discusses how TAR is used by medical researchers to support their efforts to understand and treat COVID-19.
David Ries gives an overview of work-at-home and remote access best practices.
Doug Austin surveys the current state of the eDiscovery industry and discusses emerging trends.