Host Sean Harris talks with OAJ member, Mark Abramowitz, about technology and E-Discovery. Mark discusses different databases that should be used in Discovery to organize and structure information even when it falls under an unstructured category.

Sean: Hello, I’m your host Sean Harris and this is episode 47 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is March 19th and I’m here with our guest Mark Abramowitz from Mentor, Ohio. Mark, thanks very much for joining us here on Civilly Speaking.

Mark: Thank you for having me.

 Sean: Our topic today is technology and Discovery and of course E-Discovery is a is a big buzz word in legal circles these days. When we talk about technology and Discovery we’re talking about databases repositories of information. I guess at the outset what types of databases are we talking about?

Mark: Well there’s two main umbrellas that any organization would have to have their docket their information in. One is structured. The other is unstructured. And there are various names of different databases that work off of these two structures. So you have a XML database you have SQL databases that’s SQL but pronounced sequel. There’s Sybase. There are Oracle one’s, a whole bunch. But what they all have in common is that it’s a way to organize and structure information even when it’s in the unstructured category, there’s still a structure to that and if you can follow that sort of structure when you start thinking about cases and starting off your hunt in discovery for the wrongdoing they’ll help guide you. So knowing that is a great start to the overarching topic of starting discovery and technology.

Sean: The concern or the issue with E-Discovery is the sheer volume of data and information that’s available from any given defendant from any given source that or site that all of the defendants might have so there’s no efficient way you know to comb through all the data. I would imagine there, we have to rely somewhat on reports or summaries of the data to have it be meaningful.

Mark: Correct and that problem is not just our problem that’s also the organization’s problem. Hospitals, large companies have all found ways to take their vast amounts of data that’s out there and bring it down to specific reports and these reports helps as you nicely point out make a way for us to review things and for those companies to review things. So if you can figure out how those organizations do their report writing, what they use for report writing, what database they have and how they interact with standard report write writing software, you will have the ability in discovery to ask for certain reports to be produced to you. So you’re not stuck with all the vast amount of data in whatever format they choose rather you can ask for the report that a manager might get or the CEO might have reviewed or what the engineers got their hands on. For example Epic, it works off of two omni directional databases, however it works with a very standard report writing software called Crystal Reporting, therefore you can ask you know a place a hospital who has Epic if they use Crystal Reports and if they do you can most likely ask them for the list of pre-configured reports that they already have and then you can ask for that in discovery to help pinpoint where and how the information was inputted into that system or where it might lie in there.

Sean: And I gather that normally when we’re talking about technology everything is usually a three-letter acronym, right SQL? Yeah you have to you have to speak acronym and so when we’re talking about API and SDK what are those and how do they help as far as the systems talking to each other and finding data?

Mark: Absolutely so just like in the old days where there was memos and faxes that were sent between people that a person had to initiate, computers need that same prompting. They use the term API which stands for Application Programming Interface which is the standard hooks that a program has to talk to another one. So, if you have two different pieces of software or two pieces of hardware that need to talk to each other, a lot of companies build what’s called an API that says all right if you want to talk to our stuff, this is how you do it. They might even produce something called SDKs as you point out or what’s called software development kits. Again, both of these are standardized ways that the technology industry allows different software to talk to each other. Now this is of great value to us because you don’t know all the systems that’s there. Typically, most I.T. departments have a whole section of individuals dedicated to working on APIs and SDKs. They usually maintain a list of all the programs and their API’s and who made them. So you can then start figuring out well if this person dictated a note let’s say a doctor they paid a note and they use Dragon software to dictate it you might be able to figure that out if let’s say that hospital had paid for and used the API with Dragon software between their EMR. Now you know to start looking at Dragon software to see what information that might be contained in there because as they’re talking to each other to different programs retain different pieces of information and that is a lot of times a place where you can find additional evidence to help you with med mal case cases specifically as electronic medical records have made pinpointing data quite hard over the past several years and this is a way to help A, cut through it and B, show courts that there are ways to get the information that sometimes you hear is impossible to reach.

Sean: And speaking of courts and you know the kind of practical application of this what is to a lot of us theoretical how can we use our current office I.T. structure to help with our cases?

Mark: That is a phenomenal point. I mean that’s how I got my start in trying to start to think about these things and getting into this area of discovery so in-depth. It was you know I was tasked to my first few years at the firm, happened to be the youngest kid there I was told go figure this stuff out we need to you know be able to remote into our system better, buy some new computers, buy new server just figure it out and that put me on this path because all the things I mentioned about report writing and databases and APIs and SDKs are things that you need to have, not need to have that you most likely do have in your office. I mean you might have a Keith Manson software that talks with a billing or a bookkeeping software so I mean if you have Needles, that’s what we have in our office that has an API that integrates nicely with Quickbooks so you can request checks in one system and it kicks it out to the other system certain data is then transferred between the two of them. So taking that back to you know discovery of a larger company you can then think to yourself well if they have you know if the EHR is not creating the bills we know it needs to talk to something else to create that. So that’s where that is or even looking at yourself going when I’m on vacation or I get a call at night from a client that I want to go and log in to my system think about every step that you have to take to do that because employees at the defendants as corporation have to do the same thing. If you use a terminal server or if you use Citrix for example and what shows up on your desktop and deciding what software there is and how often to update those things. Those are all roadmaps to effectively attacking a defendant’s I.T. structure because whether big or small we all have it. I mean whether you have a Pinto or a Ferrari they’re both still cars they still have engines they just do things at different speeds.

Sean: Now I know there’s this term that I hear thrown around a lot and that’s an audit and when the defense requests an audit what does that mean? What are they talking about?

Mark: An audit is a collection and this is really important to understand what an audit is. It’s just a collection of data in a chronological order that outlines what has happened in that system, it’s essentially a log. Now I know in medical malpractice cases we’ve it’s come my vernacular for what medical records need to keep, but what data write medical records need to keep about the medical records. However, it’s much more vast than that. It is really every computer program has it. So, you know if you ever see in your computer where there’s an issue or something freezes up and Microsoft pops up and says can we send a log back to Microsoft to tell what went wrong. What you’re sending over is an audit trail or audit log it is a common term used in the technology software development area and by using that larger definition when it comes to even requesting for an audit trail or many audit trails in cases lately in medical malpractice cases we’ll end up with audit trails from five or six different software programs because they all keep them and you can then line them up against each other to see how the day actually went, potentially. If there is an issue with the timing or the timeline of events and what is contained in an audit, it can also be referred to as metadata. Metadata is the data about data. It’s kind of weird to think of it that I mean every time you save something it creates more data and that’s all logged in the audit. So, you have all this information that’s out there that’s being stored by computers in the background you don’t ever see unless you know had asked for it.

Sean: And so we’re talking about data about data. Is that what breadcrumbs are?

Mark: So Breadcrumbs is actually an old term that you know has still come around or still around I mean. If you look if you’re in a Microsoft based system which Sean I’m not sure if you are but if you were to go to one

Sean: I am unfortunately even though I am an Apple guy.

Mark: Oh that’s fair. So I don’t know how or where to point you to the Mac of the top my head because I have a P.C. in front of me, but when you open up.

Sean: I’m sorry.

Mark: That’s all right. When you open up a Windows Explorer file so you go and look for your files and you look at the very top there’s an open bar in there. A lot of times you’ll see a thing that says this P.C. and then a little arrow that says DOT to the next thing which then says the folder that you’re in. I mean it could be your documents that say or your music. Then you click on maybe your iTunes file. In that bar there, it’s a breadcrumb of where you are going or where you’ve been. So this say you know if you’re looking at it it’s like the example I have again is I am I have clicked on my desktop I clicked on my music I clicked on my iTunes. That whole line that you’ll see in that bar is your breadcrumb. Websites do it as well, in the address bar as you keep clicking throughout the website it keeps growing and for our case it’s dicellolevitt.com. If you go to the about us it’s dicellolevitt.com/about us. So on so forth it keeps growing. What is valuable is at every step everything that you see in that breadcrumb has information. So for example I was sent one time a screenshot of an index and when you looked at the bottom the index the breadcrumb was there and I was able to quickly point out the stuff that I needed was a screenshot two steps before because they try to give you only that little section that was too it was not broad enough to answer the questions I need answered so by looking at that breadcrumb it opened up additional data that I didn’t know was there because as you will back through it there’s more information to be had and it’s really easy to tell the court what happened or how to get there. Have them log back into this place here and just stop when they get to this folder right there. It is unbelievably specific for a court to hear so that they can easily go and help you get it now so if they compel it, it’s very specific what you’re asking for it’s not just everything your Honor, it’s no I need that folder right there your Honor and this is how they’d get here they would click on this first folder here and then click on this next folder there and then I want this screenshot. Your Honor that’s not hard it doesn’t take 40 hours like they’re claiming it would I just walked the steps, I’m happy to say it again so you can put in your order.  I mean you can be that simple.

Sean: And by the way have you found success in kind of explaining it that way?

Mark: Yes we have been able to. In fact unfortunately it ended in the wrong way for us but we actually had a mistrial because the defense claimed that some was impossible when it was and at trial when it came out we had a mistrial on it but it has been helpful to bring it down to that sort of level of explanation so when they say things are impossible and then you show that it’s not the judges have an unbelievably receptive to it.

Sean: So we’ve talked a lot about files you know Excel spreadsheets and Word docs and these kinds of things but so much is done by e-mail these days. Tell us about e-mail and Exchange servers and what we need to know about that.

Mark: Absolutely. So again a good place to start with this is to sit with your I.T. people and figure out how your Exchange server works as you have one as well, but when you deal with emails and you send one out what happens is it goes from your inbox to an Exchange server where the data is stored and then it’s sent back out again. So when you do discovery at the Exchange server level you get out of the argument of there’s too much for us to go and get, it’s not possible to log into that person’s computer, this person’s not here anymore. All these different accounts, all this information is stored in the Exchange server. Again, telling a judge or just ask them to go to the source of everything because that’s where it’s saved. I mean nowadays I mean things have changed over the years. There used to be the situation where your emails were actually stored on your computer. If you deleted off your computer they were gone. If you want to discover that those emails you had to go back to that individual computer. With the advance of phones in the way that were so portable with it now when you delete an email on your phone it magically deletes on your computer as well. That is happening because you use an Exchange server and that Exchange server says OK we are giving everybody the information, we are the masters of that information up top here and if you delete one thing here we know it needs to be deleted off of anybody that’s accessing this information as well. And we put it into our database so it goes into the depths of how that database is set up or that Exchange server’s database is set up. So by knowing to go to that top level you can get through some of the minutia and the slogging through all of the different fights over who has what and where it can be located to start a central location and everything should open up from there.

Sean: Mark sometimes some of our members who may have more gray hair than others may feel that this is kind of beyond their comprehension. Is that true in your experience?

Mark: Absolutely not. These are all simple concepts with hard acronyms faced on them. When you go back to how things were done before computer systems are only recreating that. It’s been amazing at how much I learn from some of the older attorneys here, but what they used to go and search for and how they would prove different things and how I just sat down thought about it looking at our system as the example and then use that to go and ask discovery in those cases. One example that’s been unbelievably helpful to me has been the way that attorneys used to get faxes between different offices because those are frozen in time. Once one office faxed it, if somebody else tried to change it afterwards you would still have the original fax from it. Although with faxes it doesn’t happen the same way now it’s all digital with just a few buttons, there are APIs, SDKs, and databases that store both of those faxes. So you’re still able to use that idea that simple idea that’s worked for many years in the technology sense during discovery. So it’s easy to start, you just got to think about what you did before and figure out what the new language on it is and then you can use that same example back to judges again to help them understand as well, that this is not complicated. This used to always be done. There’s no reason why it can’t still be done.

Sean: Well that’s a good point, Mark and we appreciate you being here today on Civilly Speaking.

Mark: My pleasure. And I really enjoyed my time here and if any questions feel free to reach out to me I’m always happy to help.

Sean: Thanks Mark and if you out there like our show and want to learn more check out civillyspeaking.com or please leave us a review on iTunes and we’ll see you here on the next episode of Civilly Speaking.