The American Lawyer today reports that a Software Glitch May Have Erased E-Mail Text in Enron Suits.
Quoting from the article:
“The company [Applied Discovery] handling electronic document production in the Enron civil suits says a software bug may have erased text in e-mails produced for discovery in the case over an 18-month span…. lawyers handling the Enron litigation said it was too early to predict the potential impact. … The e-mail bug delivers messages with only the subject lines and sender information intact, but does not capture the body text of the e-mail. … Nagel [of Applied Discovery] described the problem as “a Microsoft issue.” He said the problem is not e-discovery specific, meaning that anyone who uses an unpatched version of Microsoft Outlook 2003 to open a type of file called a .PST from Microsoft Outlook 2000 might find that the e-mail opens blank…. Craig Ball, a computer forensics and electronic discovery consultant… said he is surprised to learn that a market-leading company like Applied would use Microsoft Outlook to search e-mail. He said Outlook is good about opening files, but inaccurate when it comes to searching file content and is limited in its ability to do Boolean and other searches.”
The entire article is worth reading. Time will tell if this problem could easily have been avoided or reflects inadequate care. Meanwhile, it’s a good lesson that litigators and lit supp managers should make sure the tools they use work appropriately. For those who might think “time to return to reliance on humans,” remember that people on balance make more mistakes than machines.
This development may usher in a new age where not understanding how critical tools work is unacceptable. If so, the question still remains how much you need to know and investigate and what the appropriate standard is or will be.
Thanks to Monica Bay over at the Common Scold for pointing this out and sharing the news.
Update: See the August 16, 2006 Common Scold blog post reporting on law firm Bartlitt Beck’s letter concerning the above.
Update: See the August 11, 2006 LexisNexis response here. I came across this via a Google search; I did not find a link to this on the L-N site. See also, however, a L-N letter and a response by Craig Ball, both at the Common Scold blog.