eDiscovery: Not just for large firms!

Episode Notes

Transcript

[Music]

Intro: So, if I was starting today as a New Solo, I would do something — the entrepreneurial aspect would be — we’re going to have to change the way they’re practicing — by becoming a leader — analyzing one after another — to help young lawyers — starting a new small firm — what it means to be fulfilled — make it easy to work with your clients — bringing authenticity — new approach, new tools, new mindset, New Solo — and it’s making that leap.

Adriana Linares: Hi, and welcome to another episode of New Solo on Legal Talk Network.  I am your host, Adriana Linares.  I’m a legal technology trainer and consultant and in case you’re new here, I like to talk about technology, practice management, being efficient, services tools and such for lawyers.

A lot of times we focus on solo and small firm, but I think the topics that I cover and the guests that I often have on can go way beyond that.  I’ve been hosting this show, I think since about 2014.  Back in April of 2020, I did a show called Tips and Tools for Surviving the Shift to Remote Work.  This was obviously a pandemic inspired episode, and my guest at that time was Brett Burney.  Brett is back and Brett is back because I ran into him at legal tech in New York, which is a technology conference kind of.  I always say it’s geared toward the chiefs.  If your firm is big enough to have a chief security officer, a chief information officer, then you’re probably going to go to Legal Tech New York.

But I don’t see a lot of solos and smalls in there other than — or even mid sized firms other than in the exhibit hall and that’s where I ran into Brett and Brett is my eDiscovery guru and we got to talk.  I said, “You know, you should come on to New Solo and we can talk about helping attorneys figure out how to run cases that require eDiscovery on a solo small firm budget.”  So, Brett Burney is here today and I’m very grateful for his time. Hey, Brett.

Brett Burney: Hey, Adriana. It is great to be back with you.  Yeah, I always enjoy running into you, whatever conference that we’re at.  You know what, maybe I’ll just make a bold statement right out of the gate here.

Adriana Linares: Please do.  We love those Brett.

Brett Burney: If you’re listening now and you heard the word eDiscovery and you’re ready to turn it off, can I just encourage you to stay on for a little bit?  Because I get this all the time.  People say, well, you don’t understand.  I’m a small firm.  I’m not at a large firm.  I don’t do this eDiscovery stuff and my response is, you are doing eDiscovery.  Everything we deal with today, if you are litigating, you are dealing with Electronic Discovery.

I always ask people can you litigate without eDiscovery?  And my next question, Adriana is, well, can you practice law today without a mobile phone or without email?  And really, the answer to both of those questions is, yes.  Yeah, you can practice law without having a mobile phone, without having an email, but you’re probably not going to be a very effective lawyer today, right?  In the same way with eDiscovery.  I just want to encourage everyone because I’ve been looking forward to this conversation for a long time Adriana that I just want people to know, like, you are dealing with Electronic Discovery if you’re litigating today.  Now, you may choose to print those electronic files to paper or to PDF, you may choose to do that, but the original file that you’re dealing with is electronic.  Okay, so I don’t want to step on the toes there Adriana.  First of all, I’m so excited how long you’ve been doing this show.  I love this and it’s just great.  I get so passionate talking about this because there are ways that you can successfully navigate the eDiscovery troubled waters of today even if you’re not at a large firm with like five full time litigation support personnel.  There are tools out there for everyone.

Adriana Linares: And I want to say, Brett, make sure you remind me to tell everyone about just this morning I had a call with an attorney looking to get all of her emails that she had in her inbox to opposing counsel in a simple way and we just used Adobe Acrobat and turned it into — it was so easy, she couldn’t believe it.  So, I don’t want to get ahead of ourselves when we’re talking tools, but make sure we cover that.  Maybe you are going to, but that’s important.  But wait, before we go any further, okay, I want you to tell everybody a little bit about yourself because you are an eDiscovery consultant, a technology consultant.  You have a podcast of your own we’re going to talk about, and you were an attorney like me who just talks to talk but doesn’t walk the walk.

Brett Burney: I went to law school, well, many years ago, way longer than you’ve been doing your podcast Adriana now.  I’m so old, it’s terrible.  Anyway, I went to law school really because I wanted to understand how technology was going to impact the practice of law, both from a practice aspect as well as even a substantive aspect.

(00:05:06)

So, I ended up going to the University of Dayton School of Law, which is where Lexis is based by the way.  At the time there was a company there that they sponsored a program in law and technology.  Again, this is many years ago.  Many law schools have these programs today, but back then I was like, okay, that’s what I want to better understand.  This dates me now, but it was the time when Napster was involved in MP3 files and the Digital Millennium Copyright Act and I just ate all that stuff up because that’s exactly what I wanted to better understand how law was going to be impacted or how technology was going to change.  Like, what does it mean for jurisdiction when it’s an Internet crime or something?  Or how does copyright law and trademark law apply on the Internet?  All those questions just really fascinated me.  And then I just found myself in a large law firm where I was a practice support manager.  I was working as practice support and did all kinds of things like the mobile devices, and we did practice specific software like immigration tracker, intellectual property software and real estate closing binders on PDFs, all that kind of stuff I love.  But I ended up finding this little niche in Electronic Discovery, which today lets me successfully straddle the worlds of the technology side.  But as well as there’s such a growing body of substance of law today around eDiscovery and sanctions aspects and duty of preservation, all that kind of stuff that comes with that.  So that’s a little corner of my world that I like to dance in.

Adriana Linares: You know you just moved from technology geek to technology and law nerd in my book, because that is crazy.  That that’s why you went to law school and I’m sure I’m not — although that’s very inspirational.  I tell young attorneys or people who are thinking about law school all the time, go to law school.  It’s amazing credential to have and you learn so much, you learn to think in a different way.  Doesn’t mean you have to be a practicing attorney, pencil pushing and having that lifestyle that can be stressful.  There’s so many ways you can use a law degree.  So, I love hearing that.  That’s a whole another episode.

Let’s just tell everybody a little bit more about you.  You have a consulting company, you work closely with an eDiscovery company that I happen to like a lot and you have a podcast with another attorney, Jeff Richardson which I’m sure everyone might know about because he’s had his blog longer than any of us have had podcasts and blogs and you guys specialize on talking about Macs and tools services software.  So, tell us a little bit, really quick about your business and the podcast.

Brett Burney: So much fun stuff.  Thank you.  Yeah, so the consulting side, it’s probably split between 50/50 between law firms, usually smaller and mid-sized and smaller law firms and even corporate in-house departments.  I work with a lot of companies and even from like, document retention policies, records management, even preparing almost like more proactive, right?  That’s the proactive work before it hits the fan as it were, and before they get involved in litigation.  Most of my work with law firms is usually reactive, right?  Something has already happened and they just need some help in kind of navigating some eDiscovery questions and issues there.

I’ve pretty much always been on my own as an independent consultant for many, many years.  But I’ve worked with a large number of companies in the eDiscovery space.  Both the large companies like Relativity, all the way down to the smaller companies.  There’s a whole tier today of like, Everlaw and Logicull and Disco, and NextPoint is a company that I’ve known for a long time.  I’ve known the CEO there.  When he started back in 2001, he started a platform because he was a paralegal and he wanted to have a better way to manage transcripts and even trial presentation and eventually he started hosting databases for Electronic Discovery.  I work with them now as their ela evangelist.  But really, that means I get to go on podcasts like this or do a lot of webinars, a lot of blog posts, content and really, we love to focus even on that mid size and smaller law firms that many times get overlooked in sort of the eDiscovery world.  We like just to be able to provide resources on.  What do you do if you receive one humongous PDF file that represents 83 documents?  Like, if that gets produced to you, how do you handle that?  What do you do when you’ve got to produce emails, just like you said that somebody called you Adriana?  How can you review those and produce them?  Just really focusing on that educational aspect.

And then lastly, yeah, the podcast is a fun thing.  So, Jeff Richardson is down in your neck of the woods.  He’s an appellate lawyer in New Orleans, and he’s written a blog called iphonejd.com for many, many years.  And so, every Friday, he and I get on and we geek out.  We nerd out on anything.

(00:10:00)

Well, anything technology.  But we talk about the home kit and home automation as well as a lot of iPhone, a lot of iPod stuff, a lot of things going on with Apple just because we know that’s what a lot of people are asking about and how can we use that.  It’s not just lawyers.  Like we really kind of talk about a lot of technology stuff.  So, it’s a lot of fun.

Adriana Linares: That’s great.  Well, listeners get excited for maybe July, August episode where we’ve scheduled for Jeff and Brett to come on and give us the Mac special, the Apple special specifically for lawyers and school and services.

Brett Burney: You’re such a good tease, Adriana.

Adriana Linares: I know.  Well, I’m excited that we’re going to do that because I know there are so many attorneys now that are using Macs and thinking that maybe they can’t do everything that a Windows user can and you guys are going to tell them how.  Yes, you are.

Brett Burney: Right on.

Adriana Linares: Let me dive into the conversation and ask you this.  Let’s just go back to the basic topic of eDiscovery.  Can you minimize that fear of someone when they think of being a solo or small firm and having to do eDiscovery?  What’s the difference between a small eDiscovery case and an Enron type of case?  Because I have a feeling that if you aren’t sure, you think, oh my God, I’m going to end up with as much data as they had during Enron.  How would I manage it?  And I’m not saying you couldn’t as a solo, small, and God bless you if you do, but is there sort of typically a smaller case looks like this versus a mega case would look like this?

Brett Burney: Certainly, and I go in a lot of these, move a lot of these circles where it’s very large law firms, very large companies, very large litigation matters to where we’re talking about many individuals involved and millions and millions of emails that have to be reviewed before production.  Obviously, Enron is several years ago now, but we still use a lot of those emails.

Adriana Linares: I did it myself.

Brett Burney: Right.  It’s okay.  We still use a lot of that data even from an exemplary standpoint where we’re trying to show how do you use some of these discovery tools.  But we hear about these mega litigations today, a lot of multidistrict litigations, the opioid litigation type stuff, all that kind of stuff.  I mean, those are humongous like way on the fringe aspect sizes of litigation.  The vast majority certainly I know of your users and the vast majority of attorneys are not dealing with those kinds of cases and we’re dealing with much smaller ideas, right?  Now, just because it’s a smaller case, I’m just going to say it right now, doesn’t mean that you’re not doing eDiscovery because I guarantee you anything that you’re going to be touching today, even in a small case and by that I mean maybe we’re only talking about 500 email messages and maybe some text messages, and maybe they had some Word Documents over here or a couple of spreadsheets that this company was maybe using from an accounting standpoint.  Oh, and they have one PowerPoint presentation.  They store it up in Dropbox.  I mean, it’s that kind of stuff.  That doesn’t sound like a lot, and it’s not but I hope that as you were listening to me there, you recognize every single one of those things are electronic, digital files.

I always give this example, Adriana, is when we talk about emails, we don’t look at emails in page format, right?  When I’m looking at an email message from you, I’m not flipping pages on my computer.  I scroll up and down.  I like to say it this way there are no pages in an email message.  The only time that there’s pages in an email message is when you do one thing, and that is you hit the print button.

Adriana Linares: And you ruin it at that point.

Brett Burney: Exactly.

Adriana Linares: Right.  Okay, so we’re going to just say, never print an email, you ruined but go ahead.

Brett Burney: Exactly. I even use another quick example.  I’m like, has anybody gone through the nightmare when I give these presentations Adriana, you’ve been on the stage with me.  I show a picture of somebody that has scotch taped multiple pages together because they tried to print an Excel spreadsheet, right?  You see this all the time.  It’s like, why is this happening?  I’ve got a five-column spreadsheet, and it’s two pages.  The first page has the first four columns, and the second page has the fifth column.  So how do people fix this?  They get scotch tape and they tape it together.  And I say, why is it such a headache to print Excel spreadsheets?  And one of the reasons I say Adriana all the time is because Excel spreadsheets are not meant to be printed out.  They are electronic files.  And the only reason I’m harping on this is simply because people tell me, well, we just don’t do eDiscovery.  Well, did you have an Excel spreadsheet that was involved?  Well, yes.  Well, then you’re doing eDiscovery.  You may choose to print that Excel spreadsheet to either paper or print to PDF, which is essentially doing a lot of the same thing, right?  And they say, oh, well, we still do electronic it’s just PDF.  I get where you’re coming from, but that’s not accurate.

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And then just to really close that loop on that quickly, Adriana, there have been several cases in the past where a party had to go back and reproduce an Excel spreadsheet because they produced it as a PDF file.  But the question had to do with the formula that was used inside the cell, right?  When you convert an Excel spreadsheet to PDF, guess what you see?  You don’t see the formula you see the value of that cell.

Adriana Linares: Result.

Brett Burney: Exactly.  Okay, so you see where I’m going.  So, I try to tell people I’m not anti paper.  I understand when you got to have the paper, but I don’t care if you’re a solo practitioner, a small firm, a mid size, you need to be aware at least of the risks involved with that, right?  If you produce an Excel spreadsheet, has paper or PDF, or if you’re receiving that in the same way, just understand you’re not getting all of the information that you’re entitled to.  Exactly your point, Adriana, with like when you print an email, you are stripping out important information, the metadata, all the stuff that you’re really owed because that’s under the rules, most state rules and the federal rules of civil procedure, you get how the information, you get the information and how it’s kept in the ordinary course of business.  Companies aren’t keeping emails as PDF files.  They’re keeping it as emails.

So anyway, I can just keep going on because I get so passionate about this and just helping people understand.  You don’t have to be an expert about this, but you should be aware of the list of the risks involved and basically what you’re owed.

Adriana Linares: I love that.  And it’s so funny that you just mentioned the word metadata because I had just written it down right before you said it.  I was going to ask you to say, I was going to ask you to tell us the difference in when we use the term metadata in a big eDiscovery case that involves hashing and doing a lot of forensics versus the metadata that you find in a PDF file, a Word Document and an email which are not quite as complicated.  Could you quickly give us –?  I’ll tell you what I do is I often refer to the metadata in our everyday files as document properties versus dealing with the metadata.  So, can you help us understand?  Because I think that term scares people a lot, but in our day to day files, we’re talking usually about file properties.

Brett Burney: Yeah, and that’s exactly where I go for an example, Adriana, is I talk about file properties of a Microsoft Word Document, right?  Because we can still find that.  It used to be under file properties.  I think they — depending on the version, it’s a little hidden now.  But you can find in — for example, in that —

Adriana Linares: It’s FileInfo now.

Brett Burney: Thank you.  Perfect.  So, you can find that information on that box, if you go look at that.  It will tell you the exact date and time when that document was created.  It will tell you the last time that the document was modified.  It’ll tell you the last time the document was accessed.  It’ll even tell you the last time, the date and time that the document was printed.  Now all that information is important.  So, when we talk about metadata, this is going to the more simplistic aspect you’re talking about, Adriana, but those are the properties and the reason I bring this up is if you print that to paper, you’re not going to have that metadata information.  Now again, that may not be a showstopper for your case, but you should know that at that point if there’s a question in the case about when this document was created or when was the last time that this person accessed that document, well, guess what?  You’re not going to be able to find that information unless you had that original file.  And then we could even get back to some of the things you’re talking about with how do we collect that file so that when we make a copy onto like an external hard drive, we’re not doing a new creation date or something, right?  And these are just some of the concerns or the risks that you should just be aware of that when you are getting involved in sort of this eDiscovery.  If that’s a question, right?  If that’s a question in your case, when was the last time that John created this document or last accessed it, right?  If that’s not going to be a question that comes up, maybe you just don’t care necessarily and you can print it out as much as you want.  But if you think that that could be something that the other party will raise or the judge wants to know, or you’re going to have to prove in somehow, some way, the only way you can do that is to make sure that you have that electronic file.  So, the metadata can be important from all that.  Not to mention if we get it — we’ll get into some review platforms in a little bit, having all of that metadata even from like an email message so that you can quickly sort chronologically like all the email messages that you receive, that kind of a thing, you can only do that if you have those electronic files.

Adriana Linares: So, I’ll help out a little bit by saying I’m going to do it from the window side and then you tell them how to do it if they have a Mac.

Brett Burney: Good.

Adriana Linares: If you go to File Explorer and you want to sort by modified date, by title, by size of the document, it’s a meg versus 56 kilobytes, the information that you can see in File Explorer and by the way, what you’re looking at isn’t everything.

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I want you to — next time you open File Explorer my Windows users, go to the top of one of those columns, right click directly on that column, and you’ll see all these other pieces of information that you can add as a column inside of File Explorer, and those are file properties.  I mean, how else do you think that you can do a search for a document that has the word Affidavit in it that you worked on last June of 2022?  It’s because there are properties that are attached to a document, and those aren’t hard to see, find and pull up.  So, Brett real quick on Finder how would I do that if I was a Mac?

Brett Burney: Yeah, pretty much the same way.  Obviously, if you’re on a Mac, you go into the Finder.  That you can actually — what I do many times is I simply will right click.  Even on a Mac, I can right click on a file and I go to a little thing called get info.  If you do that, that comes up with a separate little box that pops up, and it gives you pretty much all that information or you can find some of the additional information exactly what you’re talking about when it was created, the last time that it was accessed, how big it is, all that kind of stuff.  It’s not complete, just like what you said, Adriana, but it will certainly give you some of that information that you may not be able to see initially.

Adriana Linares: Okay.  Let’s take a quick break, and when we come back, what I want to do is talk specifically about maybe individual tools, tips, and services like Acrobat, like iMaze.  And then in our third segment, I want to talk about platforms.  The whole kind of kit and caboodle.  So, we’re going to break it down to if you’ve got a piecemeal, some eDiscovery stuff together versus I’ve got a budget and I do this a lot, and it might be worth my investing in a full-fledged tool.  So, we’ll be right back.  I’m here with Brett Burney today.  He’s my eDiscovery guru, and we’re going to listen to some messages from some sponsors and keep nerding out on this stuff.  We’ll be right back.

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Okay, so I’m back here with Brett Burney, a good friend of mine.  We go way back to our youthful years as technology consultants, and anytime I have a question about eDiscovery stuff and remember, guys, I’m practice management advisor for Nebraska for San Diego.  I do tech support for the Florida Bar.  So, I hear from a lot of attorneys about different things, different issues that they’re having and there are certain questions, actually a lot of questions I can’t answer.  When somebody calls me about eDiscovery, I don’t have the right answer.  I text or I email Brett and he always replies.  So, I want to start with a text I sent you last week

Brett Burney: Okay.

Adriana Linares: I had an attorney call me or we had a consult through the San Diego County Bar.  She said, I have a client who has an iPhone and we need to get all of the text messages between her and her ex-husband or soon to be ex-husband off of that iPhone.  How do I do that?  And I wasn’t sure because in the old days, you would plug it into the Mac which now we never do that anymore and then you could use iTunes so I texted Brett, and one word response, iMaze and then the long response of why this tool is so cool.

So, Brett, if you’re an attorney, back to just — she didn’t do this very often.  She didn’t have this need very often.  But in this case, one attorney, one client, one iPhone, or it could have been an Android.  What does iMazing do for us?

Brett Burney: Yeah.  So, I’m going to take one quick step back on this.  This is probably the number one question that I get today in “eDiscovery”, because this is eDiscovery.  It used to be emails, and it still is.  Emails are still probably the primary source of potentially relevant information that we’re grabbing.  But in today’s world, Adriana, it is text messages and I don’t care how small or how big the case is.  I don’t care what kind of law it is, whether it’s criminal or domestic or construction law, it doesn’t matter.  Text messages today are probably the number one question I get about how do we collect this, review it, and ultimately produce them. I talk about this in usually three different methods, going from the least expensive, the most risky, all the way up to the most expensive and the less risky on that.

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So I do three different areas.  I start with —

Adriana Linares: Screenshots.

Brett Burney:  —what everybody already knows, screenshots.  You got it.  Exactly.

Adriana Linares: You’re ruining it.

Brett Burney: I’m just saying that’s a way.  If you understand the risk — first of all, it’s very easy, right?  The client can do this.  Everybody knows how to do screenshots.  You take a screenshot, you scroll up, take another screenshot, scroll up, take another screenshot, rinse and repeat.  But then you’ve got a bunch of pictures, right?  How do you get those pictures to your attorney?  And you’re taking pictures.  So, you’ve got to make sure that you have a comfort level with how you’re going to authenticate those images, right?  Because today, we have tools that we can use to modify those images, et cetera, just even on the iPhone itself.

Now, the screenshots work for iPhone and Android, so it’s very easy in that point.  But as counsel, legal counsel, you just need to make sure that you are okay with the risk, because if there’s any question about that, then we go to the next level which is iMazing.  But by the way, I’ll jump all the way to the third level just quickly, Forensic Image.  If you really want to get it the most comprehensive with the less risk, but it’s going to be the most expensive, then you’re going to have to hire somebody to do a Forensic Image of that device.  Now, that way you get everything, right?  But you’re going to have to understand how to talk with them about how to collect it.  What information do you need on there?

Adriana Linares: Can you give us a ballpark idea of what that would cost?  Like, is it $100, $10,000?

Brett Burney: Oh, no, you’re probably looking at probably at least $1,500 at that point.  And usually it’s almost about double that is what I typically see today.  But it all depends on where you are and what kind of information.  But if you want them to go and do it — and by the way, in order to do that Forensic Image in pretty much all of these three methods, Adriana, you have to have physical access to this device, right?  If you have screenshots, obviously somebody’s doing that.  If you have the Forensic Image, they have to have the physical access of the device and the middle method, which is your original question, is the iMazing software.  Now, there are several tools out there that will do this, but I have found iMazing to be probably the best.  This is software that is not for your phone.  This is software for your computer, either Windows or Mac.  So similar to exactly what you just said, Adriana.  We used to plug it in and use iTunes.

I tell people, remember when we used to have iPods?  They didn’t connect to the Internet, right?  How did you get music onto those iPods?  You downloaded the music on your computer and then you plugged the iPod into your computer and you copied it over.  Same kind of an idea here.  So you download the iMazing software on your computer, Windows or Mac, and then you plug in your iPhone, it only works for iPhones into your computer and what this iMazing software does initially, it does a full backup of the entire device, and you can work on for iPods as well.  So, it does a full backup.  Then once you have that backup, you can do a variety of things.  You can copy photos off of there obviously, you can download that.

The other thing that lawyers like about it is that you can copy voicemails from your phone and you can preserve them, you can save them out.  But obviously we’re talking about text messages here.  What’s great about the iMazing software, so once you’ve got this full backup, you can go to the iMazing software and say, I only want to see the text messages with John and Adriana, right?  So, you can narrow it down to just the person that you want from the conversation.  You can say, I only want to see it from this date range, right?  We only want to see it from January to March, and I want to search for this word.  I only want to know the messages that they were discussing bananas or whatever it is, right?  So, you can narrow all of that down to that specific set of text messages.  The best thing about the iMazing software, though, I think, is that once you’re done, you can then export that message collection out as a PDF file.  Now, I just got through talking about how you don’t want to have PDFs, right?  I understand that.

Adriana Linares: Don’t ruin it.

Brett Burney: But in this case, in the iMazing software, they even have some blog posts on their website that go through this for legal professionals because they know people are using it for this tool.  But you can even include a date and timestamp on each of those messages.  You can even apply redactions once it’s in a PDF and the best thing about this PDF is that it looks exactly like what it looks like on your phone, complete with the blue and the green bubbles, whatever it is that you’re using on there.  So, the reason so many of us like it is because when I hand this off to a client or when you show it to the judge or whatever, that it looks exactly like what it looks like on the screen, like what they expect, right?  You could export out of iMazing as a CSV file or even as an HTML file.  There’s other ways that you can export that out if you wanted it in that method for somehow.  But most people just go with a PDF.  That PDF also has the date and timestamp at the bottom.

(00:29:57)

So in other words, it can be a lot more easily authenticated because you can show exactly when this backup was created and you can show exactly when these text messages were sent and received.

Adriana Linares: So it contains the properties for the text messages also?

Brett Burney: Bingo.

Adriana Linares: What if it’s a voice memo?  Because now a lot of people really like sending voice memos as a string of text messages.  What would it be if something like that?

Brett Burney: Same thing like that.  It would actually just create a little audio file.  I think it’s MP3 or maybe an MP4, M4P, like one of those little audio files so that you can copy those as well.  Now typically, obviously you’d have to send a PDF of like the text messages and then the audio files would be separate.  But most of us are comfortable with that because then we know at least we’re getting the full collection.

Adriana Linares: Yeah, or if you’re good with PDF, you could embed the audio file with a little picture of a microphone or something.  Okay, two follow up questions on this before I move on to my next tool for you.  Oh, that was my first follow up question, actually.  And so, you said iMazing, which I think I called it iMaze, but it’s amazing.

Brett Burney: Yeah.  Like, amazing but iMazing.  It’s very cute, I’d probably did that.

Adriana Linares: It’s super cute and it makes it clear it’s for iPhones and iPods.  What if you have an Android?

Brett Burney: Yeah, so Android is a little bit different obviously.  The best thing that I recommend for Android is actually it’s a mix of both on the phone and on the computer.  So, there is a company that’s out of Australia called Synctech and they make an app for the Android called it’s very creative here.  SMS Backup and Restore.  SMS Backup and Restore.  There’s a free version and there’s a version for $5.  I think it’s just the free version is a little limited.  So, for $5, why not just —

Adriana Linares: Okay, nothing.

Brett Burney: So, this is an app that you put on your Android phone and you can open the app and say, I want all my text messages backed up, or just a select group of text messages backed up from there.  And that basically backs that information up in an XML file.  Not HTML but similar XML file.  Now the next point then after that is you’ve got to have a way to parse out that XML file, right?  Okay.  So, on the Synctech website, they even have like an XML viewer.  You don’t upload anything to it, everything stays on your computer but you can use that to view or if you’ve got some kind of an IT person that you can help them.  They have access to some of these XML parsers or notepads or whatever it is just so that it makes a little bit more sense.

So, it’s not as pretty as what you would get with an iPhone, but we use that all the time.  In fact, Catherine Sanders Reach and I, we talked about this tool many times.  You know, Adriana, she’s a very big Android user.

Adriana Linares: She was my last guest.

Brett Burney: Oh, great.  So, she uses this app all the time, not because she’s collecting information from a litigation matter but because she just wants an easy way to back up her own text messages, right?  It’s just an easy way to do a backup, but in our case, it does a backup that we can then preserve properly so that ultimately, we can review it and then produce it to the other side in litigation.

Adriana Linares: Okay, I know there’s a listener right now in her car listening to this going well, they said that the Android software is $5 but they forgot to tell me how much iMazing is.  Ballpark for that?

Brett Burney: Yeah, $45, $50, I think is a single license for iMazing.  And again, that’s software that runs on your computer, right?  The iMazing software, it’s imazing.com it’s very self explanatory and again, they have got a great blog with several posts specifically written for legal professionals about how to go through all this and the right settings to have and everything.  So, it’s a great company.

Adriana Linares: My suggestion, if you’re an attorney thinking about this or needing these tools, is spend the $55 to get both of these tools.  You figure out how it works so that when you have to tell your client to download the software and they have to do it with their phone, that you can help them do that.  It sounds pretty easy.  But please don’t be the attorney that just sends a link to your client and says, download this, send me the output.  Like, figure out how it works yourself first.  Invest your $50.  Well, it’s not that much.

Brett Burney: Well, just to underscore that it’s good, Adriana, because I’ve done some of these quote collections even remotely, right?  I don’t say that a self collection is always the best way.  Again, that’s more of like a legal strategy.  You have to make sure that as legal counsel, you’re comfortable with this.  But we’ve just done a Zoom call where I’ve gone over, you know walked a client through using iMazing.  I will just say that first backup of the iPhone could take a while, right?  Everybody gets upset at me because it’s like, oh, well, this should only take a few minutes on there.  But depending on how much you have with your phone and you know these phones today have a lot of stuff on there, just know that that initial backup, just like anything else, that initial backup of the iPhone could take 30 minutes, it could take 2 hours, it could take 3 hours depending on how much information, because it does a full backup of that.  And in some cases, I also make sure, Adriana, that people have enough space on their computer to hold all of that information.

Adriana Linares: That’s a very good point, because for a lot of us, our iPhones have more storage than our computers do.  So that’s an excellent point.

Brett Burney: Exactly.

Adriana Linares: All right, great.  So, we’ve got text messages, which you said is your number one question, and I’m not surprised.

(00:35:04)

What about social media sites like a Facebook page or an Instagram?  What’s the best way to –?  That sort of stuff I don’t imagine that you can actually sort of export and grab.  So, would you say that printing a webpage, a Facebook page is a PDF?  Are there any tools that you can recommend for doing that, capturing that kind of endless page?

Brett Burney: Yeah, back in the day when websites weren’t quite as, I guess, dynamic as they are today.

Adriana Linares: Littered.

Brett Burney: Even sometimes printing the PDF would typically be okay, I didn’t like it, but I use some ancient tools that were just like web scrapers and that we were able to do some of that kind of stuff.  But the thing about today, especially on social media and that’s another hot topic, Adriana.  People are always asking, you know this because we all go to Facebook or we go to YouTube or we go to Instagram, and in some cases, we don’t see all the comments or we only have the top comments or there’s comments there but we only see the first comment.  And then if we really want to see the rest of it, we got to go into the full post.  There’s so many different ways that all of these channels today will show information or bubble up information and really what I find most of the time people are interested in is I need to collect a profile, somebody’s profile, or I want to collect this entire post where the other side was making these comments, right?  Something like that.  Like it’s really some of this content heavy aspects.

A few tools on this.  First of all, today I cannot recommend print a PDF.  Number one, go and try it and then compare the PDF file to the actual website.  It’s not going to look anything like it, right?  There’s just so much junk, like you said, Adriana, litter that goes around that it doesn’t look anything like.  That PDF looks nothing like the actual website.  So just a few tools quickly that in this case I would recommend if this is something really, really important.  I mean, you could do screenshots there as well, right?  We could do screenshots, scroll down, take another screenshot, scroll up.  But again, just know the risks involved with that.  Because what I find many times, Adriana, is that a lawyer has like their paralegal in the office doing that.  Well, are you okay?  If the paralegal has to somehow explain how they created those screenshots, if you’re okay with that, then maybe that’s okay.  Not something I would recommend.  A tool that’s been around for a long time is X1, the letter x and numeral one.  You know that, Adriana, because they used to do desktop search tools, they have some very sophisticated social discovery tools today.  Not something I would probably recommend for most mid sized law firms, but they are still known as one of the best out there.  There’s a great service out of Chicago called Page-Vault.  Page-vault, good you’ve heard of them.  They basically do screenshots plus for you.  But the great part is that they’re doing it for you.  They’ve got tools, so they make sure they capture everything and they’ll be happy to provide an affidavit for you, right?

So you can go to the website, I think some– they actually got things several prices posted there, like couple $100 to do a full YouTube site or something like that.  So that’s great.  And then one other quick tool I mentioned, is a company called PageFreezer, just like it sounds page freezer.  But they actually have a second tool that they have called WebPreserver, web preserver just like it sounds.  And this is actually a Chrome plugin.  I’ve worked with the company several times and recommended this tool many times.  I’m not really sure the pricing specifically on this, because I think they go per page.  But basically what they’re doing is they’re creating PDFs, but the way that this Chrome plugin works.  First of all, it’s all– it can be all easily authenticated, and very well preserved.  It’s just a tool you can go and look it up and see some information on there.  But today, when it comes to some of the social media, that web preserver tool by the way, it will like make sure it gets all the comments, it makes sure that it goes through and looks at all of the comments that may be on a YouTube video.  If it’s an Instagram post, it gets all the pictures that you say, you can limit it even by date and timestamp on there.  So I know those are some additional tools I’m throwing out.  But in today’s world with the way that the web that we interact with the web today, specifically even on social channels like this, it’s probably not going to be enough to print PDF.  I don’t think screenshots are always going to be the best way either.  So you might need to look to invest in some tools for that.

Adriana Linares: Well, I think you’ve given us some great options.  Talk to me about email, like you know, this attorney who– she was actually producing her own email.  So it was in her inbox.

Brett Burney: Yeah.

Adriana Linares: But it could be your client’s inbox too.  Maybe you can give us some ideas.  I’m happy to– you know, when you’re done just mentioned the do it yourself, easy way with Adobe binders.  But do you have other ideas?

Brett Burney: Well, let me just say this.  This could also get us in.  I know, we’ll be talking about review platforms, because Microsoft Outlook is not a document review platform.  And the reason I say that is because —

(00:40:02)

Adriana Linares: It is also by the way not a case management system or a document management.

Brett Burney: Thank you.  Exactly, beautiful.  So the reason that I say that to backup now is most of the time when you’re collecting email from your client that you have to review in order to produce it to the other side.  They’re either going to be coming from a Microsoft Outlook is that’s what they use, or typically today, we will see Gmail accounts, right?  So however you are collecting that, if it’s Microsoft Outlook, you’re going to typically be collecting it in a PST file.  It stands for portable storage table, but that’s just because Microsoft continues to use this weird name for it.  But it’s been around for eons and it is basically like the default method that we use to transport email, collected from either Outlook or exchange.  And the reason it’s great is number one, a PST file can hold one email message or 10 million email messages, right, but it’s one file.  And number two, that PST file preserves all of the metadata.  It preserves the parent, child attachment.  That’s what we call, the parent is the email message in the attachment to the children.  It preserves those families.  It preserves the thread conversations.  All of that information is properly preserved in a PST file.  So that’s why we use it.

So if you have a client that sends you a PST file, because they can just go in Outlook and say, “I’m going to export this folder off as a PST file,” then they can send it to you as legal counsel.  You may think, “Oh, wait a minute.  I’ve got Microsoft Outlook on my computer.  This came from Microsoft Outlook.”

Adriana Linares: This thing is easy.

Brett Burney: I’ll just open it in Microsoft Outlook.  And guess what?  It works.  You can open up a PST file, or even a local PST file in your Outlook.  But as soon as you do that, number one, you have modified the metadata of that original emails of those messages,

Adriana Linares: You ruin it.

Brett Burney: Number two, that’s live email.  So you could inadvertently hit reply or forward an email that was never meant for you to be involved in.  You have no way to tag messages if they’re relevant or not.  And most people, Adriana, they just say, “Oh, well, that’s easy.  I just move it into a different subfolder, then.”

Adriana Linares: You’re ruining it.

Brett Burney: Guess what?  I like the way you’re saying it.  I’m using like the technical term, like you’re changing the metadata involved in that, but no, you’re ruining it.  I mean, the way I tell it to a lot of people is you’re putting your digital fingerprints on those messages.  One law firm —

Adriana Linares: Your fingerprints are now on the gun.

Brett Burney: Exactly.

Adriana Linares: Is this spoliation or is that something different?

Brett Burney: Is it?  I think yes.  But here’s the thing that a lot of people come up with, Adriana is, if the other side never asks about it, or brings up the topic, is it spoliation?  I think yes, but that’s what a lot of people tell me.  They’re like, “Oh, well, you don’t understand, the other side doesn’t have a clue what’s going on.  They don’t know.

Adriana Linares: Small town attorney in Borough, Idaho, what do they know.

Brett Burney: Right.  I get it all.  And certainly if you’re at the federal level, you better have your act together, because those judges know what they’re doing.  But I completely understand that, at many state levels, if you’re not in a big urban area, that kind of a thing, then yeah, you may not deal with it.  But you don’t have to be perfect about it.  You just have to know about it, right?  That’s what the whole competency rules, Adriana.  You just have to be aware of the risks and benefits associated with the technology.  Maybe you choose to produce as a PDF, but you got to know the risks involved in that.

And one law firm called me, and they were upset because they were trying to produce email that they had collected for this very sensitive litigation matter.  They collected it from their clients as PST files, they reviewed it for I don’t know how many– a couple of weeks in their own Outlook, several attorneys, and they called me because they were upset, they were ready to produce it, right?  And they were producing it as PDF files from their Outlook.  When you print an email to PDF from your Outlook, whose name appears at the top of the email message.

Adriana Linares: Yours.

Brett Burney: Yours, exactly.

Adriana Linares: You’ve ruined it.

Brett Burney: Now, your client that you were talking — Thank you.  Your client is a little bit different, right?  They were producing their own emails, but it’s like, “That’s client emails.”  I just have to tell you, I hope they’re not listening, but they figured it out, not because I suggested this.  They figured out how to go into the print settings and reduce that font for the name down to like one-point font/

Adriana Linares: Oh my God, brilliant.

Brett Burney: And that’s how they produce it.

Adriana Linares: Wow!

Brett Burney: I know, I know.  Well, because obviously they were in it.  That’s not what I suggested.  But the point is, Outlook is not a review tool.  You can’t redact emails in Outlook.  You can’t search emails in the same way.  And everybody’s like, “Oh, well, that’s silly.  I searching Outlook all the time.  You search your own emails, you search for things that you know, but you don’t have the same capabilities to search email that came to you from a client for crying out loud.  Like that’s a different ball of wax.

Adriana Linares: Totally.  So what is the answer, if we’re not going to review emails through a PST file inside of Outlook?  Is there a platform or a tool that you recommend for that?

(00:45:02)

Brett Burney: Yes, absolutely.  At this point, if this is something that is hitting close to home for you, at this point it is when I recommend going to a true document review platform.  Now, as soon as I say that I know, you know, bells start going off because of what?  Oh, my goodness, you know, the expenses involved —

Adriana Linares: There’s a lot of affordable options out there.

Brett Burney: There are, exactly, Adriana.  That’s what I’m going to.

Adriana Linares: I’m just saying it out loud before somebody hits the pause button.

Brett Burney: Exactly.  Thank you.

Adriana Linares: Give us the one for this, and then we’re going to talk platforms in our next section.  What’s the name of what you suggested, typically, or the couple of tools?

Brett Burney: Yeah, I’m just going to quickly say on this, though, before it gets to this point that you need to start worrying about the cost involved here is I’m hoping that everybody’s been listening up to this point so far, because this, the whole thing about eDiscovery and collecting data and reviewing data, Adriana, needs to be addressed with your client early on.  I always talked about early case assessment, right?  When you start talking with a client, a new client, you know, you’re thinking about, “Who are the people involved?  What are the events involved?  Who did what?  When?”  Like, you know, “How expensive is this going to be?  How long is it going to take?  Is there even a case here?”  All of those things you’re assessing, you know, what else?  You need to be including in that is, “What’s the data involved?  Is there a lot of email?”  You know, “Were there email communications?  Are there text messages?”  You need to be assessing, not just the early case assessment, but also, I call it, early data assessment.  Because if you can start addressing that early on, then we can get to this point on the flip side of the doc review platform that you can maybe start passing through some of those costs, right?  You’ve already prepared your client to understand, if we are going to go through with this matter, you know, here’s my time, but we also need these tools to make sure that we’re doing the best job.  Because I just see it so often, Adriana, like it hits the fan, and nobody’s even brought this up.  So of course, the client doesn’t want to pay more– this boy.

So the platform’s that we’re talking about, if you really want to go to the highest level today, and if anybody does anything in this, you’ve probably heard of Relativity.  That’s a company that’s been around for a very long time.  And they just– they still kind of have this reputation of being for very large law firms, very large service providers, very large companies, and they do.  Now, they’re changing course a little bit with RelativityOne, which is a cloud based platform.  But that’s where I go next, right?  Is cloud based platforms, just like we talked about all the time, Adriana.  Just like there’s practice management, cloud-based platforms, Clio and Rocket Matter, and all the others, and there’s cloud-based accounting tools, there are cloud-based document review platforms.  And this is what I would typically recommend for folks.  If you get a PST file, you can upload it to one of these platforms.  It will process the files for you, and protect and preserve those files for you, so that you can review and ultimately produce them out.  So on this sort of this next– there’s a wide variety.  I’ll give you some of the names, Logical has been out for a very long time.

Adriana Linares: Yeah.

Brett Burney: Another one is, Everlaw.  Disco is one.  The company that I work for, Nextpoint has been doing it for a very, very long time.  And then there’s a couple of others, Lexbe, and one that I honestly I would tell people, “That if you’ve never done anything like this before, and you want to just start out,” it’s a company called Goldfynch, Gold-F-Y-N-C-H, Goldfynch.  And the reason I tell people, it is a very good tool for what it does.  It’s less expensive, probably, than some of the other tools.  But, and I mean this in a positive way, you get what you pay for only because I’ve started out a lot of people on a platform like Goldfynch, and the snowball continues to roll and it wasn’t enough.

Adriana Linares: It wasn’t enough.

Brett Burney: Exactly, Adriana.  And at that point, even though I may have told them earlier on, you know, you have a little bit more sophisticated needs.  And so, Nextpoint, maybe, is where you should start.  But Goldfynch is very good for what it does.  I’ve worked with several cases to where it’s been adequate up to the point, but they could quickly will run into some barriers.  Now, again, nothing against Goldfynch.  It’s fantastic.  They even have a really nifty pricing slider on their website, so you can determine– you know, if you only have five gigs of email, which is always going to be a lot more probably once it gets processed.  But those are, platforms that you can use.

Adriana Linares: Now, wait a minute.  Did you just cut into our third segment and you’re talking about platforms in general, or this is specifically for helping and managing PST email files?

Brett Burney: Well, it’s such an overlap here, Adriana.

Adriana Linares: Okay, making sure.

Brett Burney: Because it is.

Adriana Linares: So, it is good for emails —

Brett Burney: I know I’m jumping the gun.

Adriana Linares: You are.  I know, you’re excitable.  But so, let me just stop you here, because let’s cover that in the next segment.

Brett Burney: Okay.

Adriana Linares: Everything you’ve given us is so helpful, but let’s just pretend that was the answer to just emails.  And I’m going to ask you next about how do you just bring it all together?  But I want to ask you one more question, before we take our next break.

(00:49:57)

Just back to emails in Outlook– oh, I promised everyone that I would mention the very cheap, do it yourself way, which is, if you have a professional PDF tool that you are paying for, and you have all of those emails in a folder in Outlook, you can right click, and you should see an option to archive as a PDF, in which case, and I’ll talk about it from Acrobat.  Acrobat takes all of those emails and their attachments and puts it into this pretty cool binder, which allows you to see the PDFs in a table, you can sort by subject, sender, date received, and it actually preserves the attachments in their native format.  So there’s an attachment as a Word file, you see it as a Word file, and it even keeps the headers, the metadata of those emails.

So Brett in– you know, that’s a response I usually give when somebody’s like, “I’ve got too many emails in my inbox.  I’ve got to archive these closed matters.  What do I do with them?”  I’m like, “Oh, use the PDF archive.”  But from a production perspective, is there something we need to know as a risk or a benefit when producing a PDF archive?

Brett Burney: Yeah.  The binder itself– It has even come up in several case law that unless you have– This is the Acrobat specific file format, right?  So you have to have Adobe in order to view those binders, is that right, Adrianna?

Adriana Linares: You have that PDF.  I mean, anything that will do PDF.

Brett Burney: In a binder? Yeah.

Adriana Linares: Yeah.

Brett Burney: That has been just fine for many folks in doing a production set.  But I would just make sure that at some point, you may be discussed the production format with the other side, before you do that.  I know there a lot of people don’t want to do this.  They don’t want to bring it up, because if they bring it up, then the other side is going to require them to do it.  Certainly, at the federal level, the Federal Rules of Civil Procedure say that, you are required to discuss the form or forms of production.  And most states today have adopted that exact same language and they say, you have the right to request a specific format or a specific form of production.  And so, will that PDF work fine?  Sure.  If that’s what you’ve kind of discussed, and they’re okay with that.  The only reason I bring this up is because many times I find that smaller law firms are involved, like this comes up in employment discrimination matters, right?  One employee that is bringing a lawsuit against a very large company that has a very large law firm that’s representing them.  Well, those large law firms are probably not using some of these tools, they may be using Relativity, they may be using something a lot bigger.  And in which case then, they may come to you and say, “We require you to produce this in a very proprietary format that we call a load file.”  That’s just what we’ve call it.  It’s a mix of all the individual images and an extraction of all of the database elements, the metadata and everything, as well as maybe even accompanied by text files for the OCR– you know, for the extracted text.

So that’s really techy and nerdy.  But many of these law firms, larger law firms, especially, will have that requirement, or especially if you’re going up against the government.  Certainly federal agencies today have a lot of requirements as far as this is exactly how you’re going to produce it to us.  And usually, it’s not a PDF binder or that kind of an aspect.  But if that’s what the other side– you know, if it’s a smaller matter, and it’s just a few PDFs, most everybody has the ability to open and view PDF files.  But just know at that point that if– Again, back to what I was talking about earlier, if you convert an Excel spreadsheet to PDF, they may say, “Okay, I see the PDF version, but I also need the original Excel file for this,” right?  And many times, that’s how we do it, Adriana?  We will say like, “We’re going to give you like a placeholder or this PDF version of the Excel spreadsheet.”  But we’re also going to provide that native file alongside that, in case you need that if that’s what the question is.

Adriana Linares: Okay.  All right, let’s take our last break.  We’re going to come back and get back to that conversation about platforms.

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Okay, I’ve had a very exciting and I never say that about eDiscovery.  But Brett, I think this has been a cool and exciting conversation about, sort of, you know, getting our feet wet and understanding what our tools are, if we’re either piecemealing or just have one little project to do, like you know, export text files.  But now I want you to go back to the conversation about platforms and tell us, is there like a buckets that you would put all those tools you were mentioning in earlier?

(00:55:01)

So when somebody calls me and asks about case management, I say, “Well, there’s three buckets that I usually put them in, those that don’t have accounting, those that do have accounting, and then the ones that require you to hire an accounting and technology consultant.”  So I have buckets.  Would you say there’s the basic bucket, the intermediate bucket, and then the advanced bucket of these eDiscovery platforms?

Brett Burney: Yeah, I think so.

Adriana Linares: Can you break those down for us?  Okay, start with the basics.

Brett Burney: And may even only two buckets there.

Adriana Linares: Okay.

Brett Burney: You know, what? Just go back to what I said, like that high advanced bucket, I’m going to flip it around, Adriana.  That high advanced bucket would be something like Relativity.  Typically, if it’s regular Relativity, and I mean that from the sense like, you want the basic tools on there, you may not even be able to access it yourself.  Again, they have a cloud version today, but a lot of Relativity is done by like a third-party, what we call a service provider, right?

Adriana Linares: Sure.

Brett Burney: So that you’re not even dealing with the software yourself, you’re having it hosted by a service provider on there.  So that’s sort of like that way high advanced bucket, and for good reason.  Relativity has been around for a very long time, and they have probably the most advanced tools.  If they don’t have it, they’ve got third parties, you know the API’s that work with them on that, and partners as well.  But I would almost throw just about everything else into the intermediate.  I guess, there could be some basic buckets.  If I go– you know, maybe I’ll put Goldfynch and maybe another tool called Lexbe into that basic bucket.  And I don’t mean that negative in any way, but again–

Adriana Linares: It is not negative.  Because sometimes that’s all we need, or it gives us the diving board to jump off of into the next level.

Brett Burney: Exactly.

Adriana Linares: It’s a good starting point.  So, Lexbe and Goldfynch.  And with those, you can throw everything into it, whether it’s a text message, PDFs, Excel files, PSTs, everything can go in there.  So, tell us how these kind of works?

Brett Burney: Yeah.  It’s really like you get a PST file from your client.  The great thing about the PST file, everything is preserved inside it, right?  So you’re not going to open that in your Outlook.  That’s not what Outlook is designed for.  But you simply will go to goldfynch.com, you’ll log in and you upload that PST file to Goldfynch.

Adriana Linares: They called cloud-based?

Brett Burney: It’s all cloud-based. So I tell people, if you can upload a picture to Facebook, you can upload a PST file to Nextpoint or Goldfynch, whatever tool that you’re going to be using at that point.

Adriana Linares: Are all of these cloud-based?

Brett Burney: Yes.

Adriana Linares: Okay.

Brett Burney: Yeah.  And that’s the way it’s going.  There were two desktop-based eDiscovery tools, and one just got sunsetted.  So there’s only one right now.  It’s a company called —

Adriana Linares: One has got hanging out.

Brett Burney: Yeah, Digital Warroom.  So if anybody wants to go and look to that, they do have a desktop tool– I think they have the pricing on there, maybe $1,600 or so.  But again, you know, unless you’ve got a high end computer that can do a lot of processing.  That’s what I run into a lot.

Adriana Linares: I was just going to say and a hard drive the size of the National Archives.

Brett Burney: You got it, exactly.  And so, they still offer that.  So Digital Warroom is another good one, but then they also have cloud offerings that if you need to move into that, because they anticipate that you may need to move into the cloud at some point when you have too much to do.

Adriana Linares: Okay.  So those are two– start here, especially if you’re just looking to get your feet wet.  And do you have any pricing information on those two– They do it by gigabytes still?

Brett Burney: They do.  And that was the other point that I wanted to get.  So most of these platforms will charge per gigabyte per month.

Adriana Linares: Okay.  Well, what’s the per month part?  Like, as long as you have it up there, and the cases arrive and you want to access the data?

Brett Burney: You got it.

Adriana Linares: After the case, you can get it all back, or have them destroy it?

Brett Burney: That’s right.

Adriana Linares: Wow.

Brett Burney: Yeah, now most of the time that’s on like a per case basis, right?  You know, Adriana, that a lot of the companies today want to get you into a subscription level.  You know, they want you to commit to several years.  So there’s all different pricing ways, and they give you some price breaks on some of that.  But if you’re just doing like a one-off, or every three months, you have a case, that kind of thing, then it’s per gigabyte per month, for as long as you have it, as long as they’re hosting that information for you.

Adriana Linares: That’s interesting.  And I was guessing.  I mean, I don’t know how this stuff works.  I’m just assuming what is sensible and ballpark pricing, if you have it, or should we look at their website?

Brett Burney: Well, that’s what I’m saying.  The reason that I like Goldfynch so much is that you can go in, they’ve got a pricing slider, and I think they even start with like, maybe $30, you know, per month for three gigabytes or something like that.

Adriana Linares: Gee, it is nothing.

Brett Burney: Exactly, but again, it’s basic tools.  I’ve even talked with the founder several times.  You know, they know that this is a sweet spot for them.

Adriana Linares: That’s great.

Brett Burney: And it’s great for folks that just have those PST files, or other files.  You just don’t open– Like if a client sends you a Word document, don’t open it in your Microsoft Word because you’re changing that metadata, same thing with the PST files.  So Goldfynch is excellent for those kinds of aspects on there.

Adriana Linares: Can you give us a visual of like, what this looks like?  So you take all the files, you upload them, you’ve created a Goldfynch account, you’ve put in your credit card information, you’ve uploaded your files, and you’re like, “Okay, file 1, you know, 00001.

(01:00:02)

What does it look like, the dashboard, just real quick give us an idea of what we’re going to see and then what the buttons would be that we would press to review that data?

Brett Burney: Right. Think of an Excel spreadsheet.  It literally is a database.  And for me, the best way I think of it is an Excel spreadsheet, because I’m not an Excel wizard.  I know you’re a much better Excel user than I am.

Adriana Linares: I wouldn’t say that, but–

Brett Burney: I know how to filter, I know how to sort, right, in Excel.  So if I go into my database in Goldfynch, or Nextpoint, or whatever other platform that I’m in, I just want to say, “I want to see all these emails from John, sorted chronologically,” right?  So I want to start with the very first one, and I go to the next one, go to the next one, go to the next one.  So I have the ability to do that sort.  Now, once you’ve got it sorted, you have all of the information exactly what we were just talking about earlier with like the Windows Explorer, or the Mac Finder.  I want to not only see the date that that email was sent, I want to see the from field, the to field, the CC field, the BCC field, I want to see the subject line.  I have access to all of that information on emails or Word documents, the author, you know, for example, there’s all kinds of metadata fields that I have access to, once it’s in a platform like this that I can either use to filter on.  I can say, only emails from John in 2018, right?

Adriana Linares: That have the word, Martini in it.

Brett Burney: Exactly, exactly.  So I have the ability to build those searches on there.  And once I’ve got that list narrowed down, because John’s email is going to be chock full of junk that I just don’t even care about.

Adriana Linares: Right.

Brett Burney: All the espn.com sports scores from every day, the nytimes.com.  You know, “Hey, there’s doughnuts on the fifth floor, everybody come and grab some, you know.  I don’t care about all those emails.  I just care about the specific emails that are going to be relevant to the case that I’m working on.  And so, I use these tools to narrow it down.  Then I simply just click on the message that I want to look at, right?  And it usually will open up in a different viewer, sometimes it’s a different tab, sometimes it’s a different window, and in this viewer, it allows you to place redactions if you need to, you can search that specific document.  And most importantly, we usually have what we call a coding form on the side.  So we can say, you know, at the very simplistic level, we say, “Is this document responsive or not, or relevant or not,” right?  If it’s not relevant, I just mark it not relevant, and I never see it again, I don’t want to see it again.  If it is relevant, the next question usually that I ask is, “Is it privileged, or is it protected somehow by confidentiality?”  Because if it’s relevant, I got to produce it unless it’s privileged, and then I don’t have to produce.  So we have the ability to tag or code, is what we say.  We have the ability to tag these files with these different options here, but it can be anything, Adriana.  I tell people like– you know, think of it as Brett’s hot document, or you know, Brett’s important documents, or here’s all the documents where John was talking about martinis, right?  That kind of stuff.  Like it can be any tag that you want to.  It is just a way to make sure that you have the ability to organize it.

Adriana Linares: Okay.  So now we got our gateway products to become eDiscovery experts, Goldfynch or Lexbe.  And so, now we’re comfortable, we like this, and we got the basics down, but we’ve got a little bit of a bigger case, what are we going to be looking at now?

Brett Burney: Yeah, that’s that middle tier.  I think I mentioned them Everlaw, Logical, Disco and Nextpoint, definitely.  Now, that’s not to say that people have it used these tools from very large cases, they have.  In fact, I know at Nextpoint, we’ve got several cases that are humongous, they just were companies that didn’t want to use Relativity or something else.  But the vast majority of the matter is typically in here, going to be what I would consider to be mid-sized cases, right?  They’re not going to be that Enron size or anything like that.  But it’s going to be the vast majority of litigation matters that people are going to be dealing with.

Adriana Linares: And then can you give us ballpark pricing, or how the structuring?  Is it also still by the gigabyte?

Brett Burney: It is.  And so again, it all depends.  You know, most companies do not want to give out pricing on this so.

Adriana Linares: Yeah.

Brett Burney: If you go to them and start asking, they’re probably not going to be happy that Brett Burney said a number, but I am going to give you a number because —

Adriana Linares: How about this?  What’s the ridiculous number?

Brett Burney: Well, I want to give you a standard number.  This is still the standard number that most people will use, because it usually comes back–

Adriana Linares: Mm-hmm exclusive information on New Solo.

Brett Burney: For most of these platforms, you can estimate about $40 per gig per month is what it comes down to.

Adriana Linares: So $500 per gig per month is ridiculous?

Brett Burney: That would be a little ridiculous.  We used to see those prices.

Adriana Linares: You go, “Ah–” yes.

Brett Burney: Yeah, we used to see those prices, I still see the prices sometimes.  But yeah, that’s a little too much.  I’ve even seen it go lower, and this is where all the competition happens, you know, in the legal tech marketplace, that comes back and forth.  Most of these platforms will do a per gig per month.

(01:05:02)

I will say however, that next point was a little bit different in this.  And I found that there have been a couple of other platforms that are trying to experiment with this, is a per user costs, as opposed to per gigabyte.  So I’ll just quickly say, because I know I’ve worked with Nextpoint.  It’s per user.  So obviously, that’s going to be a little bit more than $40, right?  It’s going to be a little more expensive, but it’s per user, because it’s not being charged on the data.  Because–

Adriana Linares: It is all you can code, all you can upload based on the user.

Brett Burney: There you go.  Because inevitably, inevitably, I see this all the time, it will grow bigger.  No case have I ever worked on where it goes smaller data than what you anticipated, it will always grow bigger.  And so, one of the reasons that I know that– Again, Nextpoint, just because I know we were one of the first to really do this on a per user basis.

Adriana Linares: Smart, smart.

Brett Burney: It’s like it’s per user, it’s a little bit more– you know, it’s not a whole lot more, but it’s going to be more than $40 per gig, but it is per user.  So that way, you’re not restricted.  And here’s the other reason that that’s so cool, because at the beginning of a case, you may not know how many gigabytes of data you’re going to have, right?

Adriana Linares: that’s right.

Brett Burney: So Rocky, the CEO of Nextpoint has been famous for saying this, it’s like, “Why are you being forced– Why are you forcing these customers to have to like, guess, how many gigabytes?”  Because inevitably, the price is always going to go up, unless you have like a per user perspective.  And that way, it’s like, “Don’t worry about wondering how many gigabytes.”  You know, you’re covered.  Like it’s more predictable pricing.  Now, Nextpoint as I know —

Adriana Linares: I like that very much.

Brett Burney: Because I know that but there’s been at least one or two other– even in the last few months, other companies that I’ve seen that are trying to experiment with this, or at least offering this this aspect as well.  So be sure you ask about it.

Adriana Linares: Okay.  So thank you for giving us a ballpark.  Nobody is going to email you and go, “You liar.”

Brett Burney: Oh, they will.  I’m sure.

Adriana Linares: No, they won’t, because I — this is my disclaimer.  I asked for ballpark, so we are not shocked.  But you know, we understand that it’s a ballpark.

Brett Burney: It’s good.

Adriana Linares: Okay.

Brett Burney: But I’m glad.  Just to the point I’m glad, because I know from a sales perspective and a marketing perspective, people don’t like to usually give numbers, and I fully understand that.

Adriana Linares: I’m a pusher.

Brett Burney: But I also know that the people that I work with, Adriana, and the people that you work with, it’s like, “You got to know.  This is important.”  But again, underscore, you should be talking about this as early as possible with your client, because it is possible to recoup some of this expense if at least you help your clients to understand or be aware of it.

Adriana Linares: Great.  So you’ve given us the gateway, the midway, and then we say Relativity is really– if you’re David up against Goliath, and you also have a client with a lot of money and you really want the Cadillac of eDiscovery software, you’re going to call up Relativity.  Now, you mentioned something called RelativityOne, is that something that they’re gearing toward solo smalls or–?

Brett Burney: More so than not, Adriana.  So it’s something that they’ve been working on for a long time because they have always been server based and they continue to be server based, and a lot of firm still have them, but RailOne(ph) or RelativityOne is something they’ve been working on for several years, and it really is very cool, and it’s really– it’s very obvious that’s where they’re putting all their resources in right now, because they understand that that’s the future for what they’re doing.  Even if you have a service provider, or somebody else doing this, and I’ll just quickly say, even for some small firms or midsize firms, Adriana, that they may have something like Nextpoint or Logical in place for the vast majority of their cases.  If it’s exactly the way you just described, they got one bet-the-firm case, right, or a huge case that they’re dealing with.  In that instance, they may be using something like Relativity, or they may be using something that– you know a service provider to help them deal with that.  So you’re not locked in necessarily, right?  You can use multiple tools when you need to.

Adriana Linares: Oh, I was going to ask you that.  So you can certainly move your data from one place to another as the existence of the case changes?

Brett Burney: Yeah.

Adriana Linares: Okay. And then one more thing.  These third service providers, you’re just talking about consultants that someone could hire– you’re one of them.  You’re at Burney– B-U-R-N-E-Y-consultants.com.

Brett Burney: Yes.

Adriana Linares: And then I guess that’s it.  It’s back to the competency rules, which is, “If you don’t understand it, you need to hire somebody that does.”

Brett Burney: That’s right.  That’s right.  Well, you know this.  You know, California is the only state so far that has issued an eDiscovery ethics specific opinion.  No other states issue this but–

Adriana Linares: So, it is California.

Brett Burney:  I know.  But this one’s good.  Not that the other Californians are bad, but this was really good.  Because it says exactly what you said.  It’s like, if you’ve got eDiscovery, and you’re not comfortable with it, you’ve got three options, right?  You can get comfortable, find somebody to help you that’s comfortable with it, or decline the representation.  Like it really is that easy.  And so, there’s been a lot of case law that has referenced that eDiscovery ethics opinion, because I mean, that’s true really for anything.  I think you know most of times —

Adriana Linares: I was just going to say it’s dumb that you even have to say that out loud, that a committee had to get together to put down–

Brett Burney: Right.

(01:09:56)

Adriana Linares: Like, Jesus.  Yes.  Okay.  Well, Brett, you have spent a lot of time with us and giving us just so much valuable information.  Thank you so much.

Brett Burney: My pleasure.

Adriana Linares: Tell everyone how they can find friend, follow you, contact you, hire you, and listen to your podcast.  What’s the name of it?  In the News?

Brett Burney: In the News.  Wow, thank you, Adriana.  Yeah, In the News.  Yeah, we do that every Friday.  You’re welcome to go to my website, burneyconsultants.com and you can look that up.  As I mentioned, and you’ve been kind to let me mention, I work with Nextpoint quite a bit.  And so, I do a lot of blog post on the Nextpoint blog.  In fact, I just got through doing a post on like, “Why Outlook is not a good review tool.”

Adriana Linares: Oh, good.

Brett Burney: And another one quickly on this, you know, even when we were talking about the PDFs, just– you know, a single PDF that is produced to you, but it doesn’t have any bookmarks.  Like, you can’t tell where– you know, there’s multiple documents in it, but it’s just one PDF.  We talked about that.  So just to give you a flavor of some of the things that I talked about, so you can certainly find me on nextpoint.com as well.

Adriana Linares: That’s great.  Because one of the things I was going to ask you, it’s on my notes, but I just forgot was resources for learning about this basic stuff.  So next blog would be good.

Brett Burney: Yes.

Adriana Linares: Well, and you know how big I am on pricing.  So just so that you don’t get barraged by free questions and calls, can you give us an idea of what it costs to hire Brett Burney, or your peers?  I know there’s other Brett Burneys out there, but again, just ballpark.  Like, “Look, I charge $350 for doing group training sessions and $250 an hour for consulting. That’s me.”  But can you give us kind of ballpark of how we would work with a third-party consultant in the eDiscovery world?

Brett Burney: Yeah, it’s almost the exact same numbers, Adriana.  I’ve always appreciate the fact that you’re so transparent, but that’s almost where I am.  Sometimes I’ll do, you know, just like you, I’m sure.  Like, if it’s something you want to retain me for a day.  But I find still most of the time people are comfortable with per hour rates, you know, when I do consulting, whether that’s with a law firm or going in and working with a company on there.  But you know, a lot of times I’ll even offer flat rates for training, that kind of stuff on there.  It is great.  I usually come in on the pure consulting side, but because I know so many of these other companies involved– you know, if I come in and I can assess maybe your firm like, do you need to hire somebody to do this full time?  Do you need to use a different tool or, you know, migrate from a different tool.  I can give you all those names, and other people that can host this information, this data for you and do it.  So I do a lot of litigation support assessments in that aspect.

Adriana Linares: Oh, that’s a good one, litigation support assessments.

Brett Burney: Yeah.  Oh, Adriana, one other resource I wanted to mention to you real quick is another person that’s in New Orleans, a good friend of both of ours, right, is Tom O’Connor.  Tom O’Connor is another independent eDiscovery consultant.  He has been around for many, many years.  And I just want to bring it up because I know that he wrote an excellent book and he’s had it, he sells it on his website.  It’s called “eDiscovery for the rest of us.”  So, you know Tom.  He’s worked with many, many midsize and small firms as well, and he and I really nerd out on this kind of stuff together.  His website is gulfltc.org, gulf as in the Gulf of Mexico, G-U-L-Fltc.org, gulfltc.org.  So anyway, I wanted to throw that out, because that’s an excellent book.  It’s for folks that, you know, just want like, “How do I get up to speed a little bit more other than listening to this podcast?” of course, but the book is “eDiscovery for the rest of us,” and it is Tom O’Connor.  I recognize eDiscovery is just a tiny bit of an overall litigation matter, right?  Most litigators have been doing this for years.  They’ve got so many other balls that they’re juggling in the air, like eDiscovery is just like, “That’s just one little thing.”  And I understand that.  But when it comes up, because it usually is the most expensive aspect of litigation.  When it comes up, “How do you as a firm, deal with it? And number two, “How do you stay competitive with it?” right?  Because if you’re not handling some of this, the other people in your general region are definitely going to be handling some of this at some point.  So do you want to be a leader in this, or do you just want to like hope it goes away sometimes, which is not going to.

Adriana Linares: It is only getting worse.  This piece is only getting bigger?  Well, Brett, thank you again so much.  This has been great.  And listeners, I hope you’ve enjoyed this conversation.  Brett is always this enthusiastic, by the way.

Brett Burney: To a fault.

Brett Burney: Always kind and excitable.  And when we say this is a person who’s passionate about their job, it’s definitely Brett Burney.  So thanks again, Brett.  Thanks everyone.  Oh, and don’t forget keep an eye out on future episodes because we’ve scheduled a recording for our Apple– attorney Apple user, Mac specialist.  There is a right click on the Mac episode for late in the summer and it will be Brett and Jeff.  Make sure you check out Jeff’s blog too.  It’s actually been rich resource of information for attorneys using iPads, and Macs, and iPhones for years.  All right everyone, thanks so much for listening.  We’ll see you next time on the next episode of New Solo..

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