You’ve received a request for the production of documents as part of a lawsuit or investigation. Time to head down to your client’s office and start boxing up the files, right? Not quite. Today’s documents and communications are almost always electronic and they can be spread across a multitude of platforms and email services.
You’re also going to get yourself into trouble if you get a request for email data and think, “OK, we’ll just log in to the old Inbox, fire up the printer, and we’ll be good to go.” With all the data available in email correspondence—from response threads, to metadata, to attachments—your HP inkjet isn’t going to cut it. And, considering a single client could have multiple email accounts and some email providers (like Google and Outlook) also offer multiple services like word processing, document creation, and cloud storage, the amount of data you’ll be required to produce can be daunting. Even finding out how to access client email can be confusing.
But don’t worry—these email providers have made collecting email data fairly simple (as long as you have the user’s permission) and the latest eDiscovery platforms have made producing that data easier than ever.
Email discovery is the process of obtaining and exchanging email evidence, or information that might potentially become evidence, in litigation. Once the ESI or "electronically stored information"—in this case email—is identified, it must be collected and reviewed, with non-privileged documents produced to the requesting party. The right eDiscovery software can help attorneys discover valuable information regarding a matter while reducing costs, accelerating time to resolution, and mitigating risks. But first, you have to collect the data.
From Gmail and Inbox to Drive and search history, Google has a staggering amount of data on virtually every individual, from who you’re emailing, to what websites you’re visiting, to where you’re located while you’re emailing and browsing. All of that data can be discoverable.
Fortunately for you, Google Takeout offers a “Download Your Data” page that makes extracting that information a breeze. You can toggle which Google products to include when creating an archive, including Mail, Hangouts, Contacts, and Drive, and the specific details you want extracted from each.
You can also configure the archive format. Gmail will be produced as an .mbox file, for example, while Google Docs can be exported as PDFs, Rich Text, OpenDocument Text, Word documents, or plain text files.
Takeout also allows you to specify how you would like to receive the archived data. Users can receive a download link via email, and download the archive directly from the email, or the archive can be added to the user’s Google Drive, from where it can be downloaded. Users may choose to preserve Gmail labels when exporting mail in the download file. You may even be able to recover a Gmail address and emails if it hasn’t been too long since the account was deleted.
Google will create a .zip or .tgz file of your archive, and section it into multiple files if it is too big.
For clients on a more traditional, office platform, there are also easy ways of exporting emails and account data from Outlook and exporting user data from Office 365 business apps. Outlook’s Customer Manager Privacy Portal allows users to export their data to a OneDrive location, which can then be shared using the link to the OneDrive files.
There’s also Office 365’s Business Center Privacy Portal that allows employers to export an employee's user data. And business owners and system administrators can also access and backup former employees’ data, as long as the account wasn’t deleted more than 30 days ago.
For those still hanging onto an AOL email account, AOL allows you to export that data through IMAP. Users of AOL Desktop Gold can also use that service in order to download their data, including mail, favorites, contacts, and settings.
Finally, if you’re an Apple acolyte and have everything stored on your Mac or in the iCloud, you can archive or make copies of files from Mail, Contacts, iCloud Drive, and other Apple apps. The only drawback is that the process may be separate for each. Apple is reported to be rolling out a feature later this year that will allow users to download a copy of all their Apple ID and iCloud data. For now though, Mail users can create a backup copy of their entire iCloud mailbox, including every message and folder in the mailbox, and save (and then share) the .mbox file.
Of course, knowing how to access and produce email data from service providers is only half the battle. The other half is knowing exactly what data to produce. Chances are, opposing counsel didn’t request all your client’s emails, from forever. (And if they did, good news—you probably won’t have to worry about complying to a request that overbroad.) And you certainly don't want to produce communications that could be covered by the attorney-client privilege or the work-product doctrine. Accidentally producing such documents could result in a waiver of privilege not just to that communication, but to the entire subject matter it touches on.
Here are the most common ways to review email data prior to production:
Manual review may be appropriate for small sets of data, where only a few dozen documents are involved. When reviewing email data manually, attorneys or other legal professionals may review the documents in their native application, such as Microsoft Outlook. However, such treatment makes it difficult to organize documents by topic, responsiveness, or other categories. Redaction and commenting on documents may require another application, such as Adobe Acrobat. It's an innefficient and often ineffective process, and one that may risk spoliation, or destroying evidence.
eDiscovery vendors may also be used to help collect, process, and review email data. These are particularly appropriate in large, complex matters where there is a significant amount of data, data only available on physical devices, instead of via the software or the cloud, and a large number of parties involved. However, reliance on vendors can be pricey. In a recent case out of New York, a vendor estimated that collecting a single Yahoo email account would cost nearly $10,000—and that includes none of the cost of review or production.
Finally, DIY, cloud-based discovery software like Logikcull can allow users to review, redact, and produce email data for discovery quickly and easily—and without any of the headaches or complexity of other platforms. If you can drag and drop, you can load data to Logikcull. From there, the platform automatically processes your data, organizing it for review and allowing you or your team to get started in minutes.
Discovery software like Logikcull can help you mine through mountains of email data for the relevant bits and bytes of information. Segment your documents by dates, file type, sender, recipient, or any of more than a dozen other categories. Quickly find simple keywords or create complex and bulk searches. You can even instantly identify potentially privileged communications, allowing you to quickly focus your review.
When review is completed, it is time to produce the documents to the requesting party. This can be done via file transfer or email, though these methods can be difficult and insecure. You may also send documents via hard drives or burnt to DVD, but have little insight to what happens to them once they leave your possession.
The best way to produce documents during discovery is through a secured download link such as that created by Logikcull's ShareSafe feature, where permissions-based access is granted temporarily before automatically expiring. And because such links are secure and tracked, once the receiving party accesses the shared files, the sending party is notified via email, similar to a read-receipt for email. You can even share documents with your team and yourself before sending them to the requesting party—that way you'll be able to see exactly what the other side will receive before you send it off.
Litigation discovery has come a long way since parties traded warehouse-filling boxes of paper upon which associates armed with little else but caffeine and post-it notes would sacrifice their nights and weekends. And email data has come a long way from a single inbox. Make sure you’re ready for email (and other user data) requests with the knowledge of where to go and how to access it, as well as the tools to organize, review, and produce the most relevant data.