Electronic Discovery – Embedded Objects

Embedded Objects

Another aspect of “processing” electronic discovery is our love/hate relationship with “embedded objects”. Okay, it really is more of a hate relationship. This is another example of technology getting in the way of practicing law.

Here is the reality:

The lawyer collects their client's electronic documents so they can review them, before producing a subset of the documents to opposing counsel.

The lawyer is told that the best way to review the electronic documents is to have them “processed” and put into a database.

The lawyer expects to get back something that resembles the electronic documents exactly.

The lawyer finds out what “processing” really means in the world of electronic discovery.

The lawyer learns what email families are.

The lawyer learns what “embedded objects” are.

One thing that “processing” means is that “extra documents” will be added to the database. The “extra documents” are the result of “embedded objects”. These “extra documents” can be misunderstood by lawyers who don't understand the technical aspects of “processing” electronic discovery.

Keep in mind that the lawyer's goal is to practice law on behalf of their client. The lawyer simply needs to review the documents and make decisions. The lawyer does not appreciate having to deal with “extra documents” and “best practices regarding email families.”

First, when the software “processes” electronic documents, it will separate each and every object as a separate item. For example, let's say you have an email with two attachments. The end result will be treated as three objects (documents). This usually makes common sense and it is easy enough to explain to the lawyer. Each object will get it own database record. The lawyer will click the next button in the database software to see each of the three documents (records/objects).

Now, another example of an object is one that is embedded within a document.

Here are some easy to understand examples:

  • When the author inserts any graphic file inside a Word document.
  • When the author adds a logo to their email signature in an Outlook email.
  • When the author adds a portion of an Excel spreadsheet to a PowerPoint slide.
  • When the author adds an HTML link (URL) in an Outlook email.

Guess what! Each of these “embedded objects” becomes a separate object and eventually a separate database record.

NOTE: If a partial Excel spreadsheet is embedded inside a PowerPoint file, the resulting “embedded object” can sometimes be the entire Excel workbook instead of just the spreadsheet snippet that was inserted in to a PowerPoint slide.

You can now imagine how these embedded objects can get in the way of practicing law. Remember, the lawyer simply wants to review the documents they collected from their client. They did not intend to have to review (deal with) “embedded objects” too.

Unfortunately, the decisions made with regard to how the “embedded objects” should be considered for production purposes, is totally subjective and each legal team decides how they want to handle them. In litigation support, we have some best practices, but in the end, it is the lawyer's call to make.

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    • Osniel Fariñas

      Sometimes the best idea is exclude them ..

      • That solution has always scared me too much, but I know people that do choose that option.

    • Stephen Whiteurst

      It’s definitely a two-sided coin – review of a single MS PowerPoint presentation can expand into 40+ records when every embedded image and spreadsheet is extracted. On the other hand, if the parties have agreed to produce in native format, it may be useful to extract the embedded objects so that you can avoid inadvertently producing trade secrets when that full MS Excel with all your client’s formulas is extracted from the same presentation by opposing counsel.

      • Good points. I try to explain to the attorney why they have a full Excel workbook right after a PowerPoint file. I tell them we should consider producing the PowerPoint as it was used in the ordinary course of business. The author did not intend to use the entire Excel file, just the snipped they inserted into a slide. Good times, right!

    • Benjamin Marks

      If you have an understanding of embedded object types, i.e. gifs (the logos in a signature line), and jpgs, or excel snips, and can view the file listing pre-processing, you can sometimes exclude from processing on the basis of metadata attributes that are common to the custodian or business unit.

      • My preference is to exclude them from the review instead of the processing stage. I’ve heard of a few instances where legal teams got into trouble for not producing embedded objects that “in their mind” contained pertinent metadata. A stretch, but it happened.

    • Kimberly Dawn Peterson

      The worst is when the client embeds multiple emails and other documents into a single Word document.

      • I have a friend who just emailed me yesterday and said he had that exact issue. Their client usually says no to embedded objects, and he had to successfully convince the client they should says yes for this matter. As an end-user, I would never think to put those filetypes into a Word document. Geesh.

    • CLEMENT SARE

      I like the way you explained what embedded documents are. You made it so clear, anyone with no eDiscovery experience can easily understand the meaning of an embedded file. The issue with them is the dilemma they represent: excluding them does not fully give an accurate account of the data you are producing and including them could significantly increase the volume of the data. Like you said, it all comes down to how each legal team decides to handle them.

      • Thanks Clement, my goal is to explain it in plain english, without technical terms, if possible. I want the associate attorneys to be able to explain it to the partners and sometimes the client.

    • Jennifer Miller

      I am new to e-discovery and we have a case in which we will be working with a 3rd party forensic partner for electronic discovery. if I am correct, I hear you and everyone saying let’s allow processing to show us everything, then we can eliminate any embedded documents from the review. This means, potentially fewer documents and savings on the financial end, yes?

      • Yes and no. Some embedded documents are easier to isolate than others.

    • Chris

      Good explanations. It also gets tricky when the review software shows an email as it originally appeared (with the embedded signatures, logos, Excel charts, etc) but those embedded objects are also separate files. Instead of one email to review it can appear that there are 2 or more. When it comes time to produce documents, many lawyers will just mark the whole family as Responsive which can lead to way overproducing, i.e. it takes longer, takes up more disk space, and generally drives up costs.

      • Thanks for chiming in, Chris. One of my favorite things is teaching a new associate why there are three documents in the database for one original email. Ha! Many document reviews are set to “tag as a family” which means embedded objects definitely get produced. The time it takes to exclude them via separate tagging could also be weighed. I’ve done it both ways. It is a subjective decision.

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