Benefits of e-Discovery for Divorce Lawyers with Brett Burney – Ep. 14

Divorce at Altitude Podcast

Living in the age of electronic information can be challenging especially when it comes to legal technology and e-discovery. The vast majority of family law cases involve some form of e-discovery from text messages, social media posts, email, and more. 

Ryan Kalamaya sits down with Brett Burney to discuss different solutions he uses with clients to combat common challenges with e-discovery through his software guidance Macs in Law and Apps in Law

Make sure to follow us to continue the conversation on FacebookLinkedIn, and Twitter. 

About Brett Burney

Brett Burney, founded Burney Consultants to provide consulting services to law firms and in-house legal departments to help them simplify e-discovery by using technology and the best apps for lawyers. Brett is a highly-sought after legal technology expert who has spoken at numerous legal technology conferences and served as Chair of the 2015 ABA TECHSHOW. He is also regular guest speaker for local and state bar associations, and has been routinely quoted in TechnoLawyer, Legaltech News, ABA Journal, and more. Brett also runs the Apps in Law podcast.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injury, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha’s YouTube channel where many of the episodes will be posted as videos, click here

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Episode 14

Ryan Kalamaya:
Hey, everyone. I’m Ryan Kalamaya. 

Amy Goscha:
And I am Amy Goscha.

Ryan Kalamaya:
Welcome to the Divorce at Altitude, a podcast on Colorado family law. 

Amy Goscha:
Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced divorce attorney, I’m also a divorce client. 

Ryan Kalamaya:
Whether you or someone considering divorce, or a fellow family law attorney, listen in for weekly tips and insight into topics related to divorce, co-parenting and separation in Colorado. 

Ryan Kalamaya:
Welcome back to nother episode of Divorce at Altitude. I’m your co-host, Ryan Kalamaya. This week we’re joined by a guest, Brett Burney. Brett is in Ohio, he’s a consultant. He runs Burney Consultants and I’m going to have you explain a little bit more about what you do for lawyers, and you’re an expert in e-discovery. And Brett, why don’t you tell our listeners a little bit more about yourself? I know you’ve got a podcast, Apps in Law. We’ll talk about that. But Brett, why don’t you introduce yourself to our listeners? 

Brett Burney:
Absolutely, Ryan. Thank you so much for having me on here. I am excited to talk about the e-discovery aspects here in just a few minutes, but it’s great. I’m just jealous of you and your beautiful flannel there in the mountains. I’m in Ohio. We don’t have a lot of mountains here, but it’s okay. It’s all right.

Brett Burney:
So, I went to law school with the idea, because I was pretty much, I guess, you could call me a tech nerd. I knew that at the time, which was many, many years ago now, that technology just like everything else was going to change the way the world was happening. And I just happened to pick the area of law. 

Brett Burney:
When I went to school, we were just talking about MP3 files, and how does copyright apply to digital files? We were talking about the Digital Millennium Copyright Act and cybersquatting trademarks. All that kind of stuff, just fascinated me, even e-commerce at the time, right? How are we going to do purchases and jurisdictional issues? All that stuff just fascinated me when it applies over the internet. 

Brett Burney:
Well, I stayed in Ohio when I graduated from Dayton, which by the way is where LexisNexis is based. So, that school, that law school had a program in law and technology. And that’s what really drove me there. But the Midwest, isn’t really the hotbed for a lot of e-commerce startups. But I found a place at a law firm where I did a little bit of IP work for about a year. And then I landed at a huge firm in Cleveland, Ohio, which is where I’m still based. 

Brett Burney:
At the time, it was just at the cusp of, the firms were realizing we need somebody that understands the technology, but isn’t a network administrator or a help desk person. Right? All of those people are absolutely critical, but we need somebody that can maybe help lawyers better understand how the technology can be integrated in their practice. And I just, I loved it. I was there for a little over five years, doing everything from, we brought in the old Palm Treos and the Good Technology software. We were doing BlackBerries. We did a doc management systems and email management systems. And then I did several little things for practice, specific groups, Ryan, like real estate closing binders in PDF, or immigration software, IP tracker software. 

Brett Burney:
But one of the big areas that was so important at the time was starting to grow into the electronic discovery world. Now, this was the early two thousands. So, we were just realizing like, “Wait a minute, what is this email stuff that we have to collect?” I mean, we were using email at the time, but the challenges were absolutely there for collecting it, preserving it, so that we could review it, because that’s where people were starting to have the conversations. 

Brett Burney:
So, that pretty much just grew out of this e-discovery world that I’ve landed in and absolutely love. It certainly helps to justify the time and expense of law school, because there is a growing body of substantive law around it, but then it scratches that techie itch for me as well, because pretty much as we’ll talk about, every matter today, almost every investigation, anything that we do is going to be touching some kind of electronic information, because that’s how the world and society deals with information today. We are basically, we work with information as lawyers. We need that, whether it’s emails or text messages today. 

Brett Burney:
And so, today, I’m pretty much am just an independent consultant, where I focus on that. I work with both law firms and in-house legal departments, and helping them overcome these challenges or navigate the hairiness of electronic discovery these days.

Ryan Kalamaya:
So, one of my first projects as a young associate for a private law firm, there was a condo administration dispute and I had to sit down with a box of printed out emails. Then I had to have Post-it notes, which ones were attorney client privilege. Then that went, that box of a Post-it note, tagged, printed out emails would go to the paralegal, who would physically put stickers for the Bates labels. So, is that a circumstance in which a law firm would call you up and say, “Brett, there’s got to be a different way, walk us through this.” And you come in and say, “Listen, guys…” I guess, what would you do in that circumstance if it was an engagement for you?

Brett Burney:
Yeah, absolutely. That’s exactly where I get a lot of phone calls. And that’s what we call the review portion of it, right? Document review or doc review, which by the way, I always acknowledge that even though e-discovery, to me is pretty much my day job that’s my world. But I also realize that in litigation, e-discovery is just a tiny fraction of the big overall litigation matter. Right? You guys have a lot more that you’re dealing with, with the client and the strategy, and everything else. But according to most surveys, and probably you can attest to this, the document review or the e-discovery becomes one of the most expensive components of what you’re having to deal with. 

Brett Burney:
But to your point, that’s exactly what we’re talking about in review is, instead of using Post-it notes on those documents, you’re pretty much just doing that same exact thing, but now in a database of some kind. 

Brett Burney:
So for example, when we talk about doing a review, you’re looking at documents, and I’m oversimplifying it here, but you’re asking the question, “Is this responsive or not, irrelevant or not?” Right? And if the is, yes, then the next question is, is it protected, privileged, confidential? So, you don’t have to produce it. Because ultimately, at least in this country, that’s what we have an open production, open advocacy. So, we are exchanging that information with each other.

Brett Burney:
But I would just quickly say, not only is it there for most of the law firms, I deal with, Ryan, is that review portion of it. But when I work with in-house legal departments, small companies, big companies, there are a lot more on the proactive side. In other words, they know that all of that information in that box that you were probably looking at, came from an electronic document. Now, you might be looking at printed versions, but those printed versions were printed from electronic documents, a Word document, a PDF, or an email message. 

Brett Burney:
And so, the idea, especially with some of the other work that I do is, how can you look at that information or parse it out, or analyze it, so that you can better understand what data that you have before you get to that expense of paying somebody like you, you’re handsome billable rate, I’m sure, to sit there and look at every single document in that box. We may not need to do that these days. And how can we best do that? So, yeah. Thanks for asking. It’s a good question, but there’s certainly both sides of that coin.

Ryan Kalamaya:
And I think, I’d certainly have some practical or some experience with that. We’ll get into that. And we’ll also get into the e-discovery within family law and divorces. But I mean, we’ve tossed around e-discovery. So first of all, what is e-discovery, and as related to that, what is ESI or electronically stored information?

Brett Burney:
Good question. In fact, when I give these CLE presentations across the country, in fact, I’ve had the privilege of talking to the Colorado Bar Association a couple of times, I have a slide in my deck, Ryan, that goes through and I have the definition of discovery from a Black’s Law Dictionary, right? Discovery, which is exchanging information that might be relevant to the other side. And frankly, I say, well, then why do we put like a E in front of that? To the point where today, I’ve even had, well, this is my e-discovery tech nerd friends, we regularly have the conversation, do we even need the E in front of that today? Right? Because really it is discovery.

Brett Burney:
And if we go with my premise that I put forth is like, every matter, every discovery that you get involved in is electronic discovery. The E is simply electronic, just like emails or electronic mail. Although many of us would say that the E in front of discovery today, maybe stands more for education than electronic, because every discovery is e-discovery. And today is just a matter of helping folks understand what that means from a practical logistical context. So, that’s e-discovery. 

Brett Burney:
And then ESI is a really nifty phrase that came about in 2006, when the federal rules of civil procedure were amended by the advisory committee. And now, several states, although I don’t think Colorado has adopted it, but several states have adopted that exact same language into their own state rules of civil procedure. But ESI stands for electronically stored information. 

Brett Burney:
So, as the advisor committee was developing these amendments, we call the e-discovery amendments in 2004, 2005, they were trying to make sure they had a phrase that would describe electronic information, so that it would almost be future-proofed, right? Because in 2004, we didn’t even have Instagram or Facebook Messenger. Right? But today, information from those platforms are absolutely electronically stored information. 

Brett Burney:
So, we use that phrase as a way to apply basically to anything, that I’m sure we’re going to get into, that is electronic in nature, Word documents, spreadsheets, PowerPoint, text messages, audio files, video, YouTube videos. All of that comes under that big umbrella of ESI. And frankly, anything that we develop in the future that might come down the pike, that’s going to be under that same umbrella of ESI or electronically stored information.

Ryan Kalamaya:
You and I talked before the show about the podcast and the evolution of Divorce at Altitude, and we have a little how to, or a little explanation of discovery and request for production, interrogatories, depositions, and it’s really over simplified. But what I think the point that you’re making is that when you talk about requests for production of documents, that incorporates not just documents, but ESI, and that opens up a whole universe of information, which we interact with on a daily basis. But we just may not think about that in the application. 

Ryan Kalamaya:
And I saw something about Teams or Slack, Teams messages. And there is a case that just recently came out. I have yet to see a request for production of Slack messages in a divorce. But we can talk about, when is ESI, I mean, for me, I’m just thinking about, “Oh my…” I’m just waiting for this to be served on a client of mine. But we’ll talk about that aspect. But when does ESI and discovery in the digital context, when does that apply in a family law case from your perspective?

Brett Burney:
Short answer, every single time, all the time. But the longer answer is, the approach I usually take with it, Ryan, is I say, I’m a realist, right? I come at it from a practical perspective. And to your point that you were just talking about there, it’s intimidating, it’s overwhelming for practitioners, maybe, especially for those that have been practicing for several decades, maybe even for folks that are newer to the practice as well, either way, to the point where I get people telling me, “Well, I don’t want to ask for that because then they’ll going to make me produce it.” Or, “I’m going to have to dig deep into something that I just really don’t want to get into.” And I get that. It’s just like anything else. Change is always a little scary.

Brett Burney:
One of the ways that I approach it, as I say, you don’t have to be perfect. You don’t have to go back to school and get a degree in network administration or email administration. The standard as it always has been, is reasonable, right? That’s where we come down to even the technology competence components, right? Which I think Colorado has integrated that language from the Model Rules of Professional Conduct. It’s not just on a substantive level to be competent to represent someone, but it’s also now that you need to be competent in the “benefits and risks” associated with the technology that you use. And today, that means understanding how your clients are exchanging information. 

Brett Burney:
And so, even though I had my tongue in cheek there a little bit and say, in every case, I used to think, like a lot of lawyers still telling me today, well, e-discovery is for those big law firms. Like, “Look out your window, that big, tall building, that’s for those guys. It’s for big civil litigation cases, Amazon and Apple versus Fortnite, all this kind of stuff. That’s what e-discovery. And I don’t do those cases.” 

Brett Burney:
But then I asked them, “Well, where does your client store information? You are having to grab information from them, whether, if it’s just the emails that they’re sending you.” And typically it has been emails, for example. But today, we are communicating across a variety of different platforms, whether it’s just simple text messaging or they’re using WhatsApp. Or I was working on a case where it happened to be in the fashion industry, where they don’t use text messages there, but what they do use is Instagram direct messages. So, we had to go in and understand how to collect information from Instagram DMs, for example.

Ryan Kalamaya:
Right, and just to start, I mean, we got right now as we’re recording this, I mean, espn.com has a new article on Deshaun Watson at the Houston Texans. He’s allegedly soliciting these massages, which, and it’s all Instagram direct messages. I mean, it is something that’s constantly changing.

Brett Burney:
Well, and then just to quickly answer your question, I mean, email has always been there and it will continue to be there. That is probably the number one place we go. So, even in family law matters, people are emailing things back and forth constantly. And in addition to that, I see it. It’s unfortunate, but it’s a reality, as you can attest, Ryan, that the people involved in the family law matter or an issue, they will take two social media channels to disparage another party, to say something bad or to post it to their friends. 

Brett Burney:
And what’s really scary here, just quickly to round this out is, they will put something like this in an email message or in a Facebook post, or a Twitter post, Ryan, which will never be deleted. And they’ll say things that they would never say to that person face to face. They would never pick up the phone and call, neither, which of those mediums would be recorded. But yet, they’ll put something down in a medium that potentially will never be deleted, unless they try to delete it, in which case we can catch that, or we can uncover that kind of a thing.

Brett Burney:
So, your question was originally, how does this apply to family law? How many times is it involved? It’s every single time. Now, to what degree it may be involved? I understand there are different approaches there to what degree that the attorney may want to invest in that, or discuss that. I understand there’s different approaches on there too. 

Brett Burney:
But the reality is, every matter that you deal with today, unless it’s something from 1965 that only has microfiche or something, or handwritten letters, everything you deal with today involves electronic information.

Ryan Kalamaya:
For listeners of the podcast, they know that we have this story with Eric and Melanie Eric Wolff, and it’s in episode one. But Eric, he’s going through a divorce. He leaves the counseling office with Melanie, and where she announces that she’s hired a divorce lawyer. And then he’s sitting on the chair lift, because he’s trying to vent and go on skiing to release that anger, and those mix of emotions. And looks down at his phone, and he’s looking through pictures of his kids. That’s an example of electronically stored information, that digital email. So, it’s the text messages, the pictures.

Ryan Kalamaya:
I want to focus, because in my experience, text messages, we all text. And it’s one of the easiest ways, at least for my wife. I mean, she’s probably text me a couple of times during the show.

Brett Burney:
Same here.

Ryan Kalamaya:
And what are the applications or ways that we can use those text messages? Are we really relegated to having just screenshots of each one? When I was a prosecutor, I remember we had a flip phone, it was the old Motorola Razr. It was for a harassment case. And we put it down on the copy machine and we literally took copies. And the screenshot of the Apple iPhone is like the next best thing. 

Ryan Kalamaya:
But how would you approach that if I called you, Brett and said, “Hey, listen, I’ve got this new divorce, Eric Wolff, he’s got a lot of information on his phone. Melanie has just been blowing them up about the kids, he’ll never see the kids.” How would you preserve that information? And what would you recommend for lawyers out there representing the Eric Wolffs of the world?

Brett Burney:
Yeah. Excellent question. And Ryan, this is probably one of the number one questions I get today, not just from divorce lawyers, whereas maybe 10 years ago, it used to all be about email, “How do we collect that? How do we preserve it? How do we review it?” We’ve gotten to the point where we can do that pretty good. We can talk about some of those platforms as well. But almost the next horizon now is text messages.

Brett Burney:
So, I’ve got three ways, typically, that I did talks through text messages, because it is incredibly important to start preserving this information as soon as it is going to be known that it’s important. Right? And again, I did this for, it was a couple of small businesses that were having a tiff about something they were doing. I’ve done this in the context of a huge civil litigation matter as well. And I’ve done it within the context of family law. Because the reality is, we have these mobile devices. We have them with us all the time, and this is exactly what we’re using to communicate. 

Brett Burney:
So, when it comes to text messages, first and foremost, I typically have to ask, what kind of a phone are we talking about? iPhones have typically a couple of additional modes that we can use or options that we have to collect versus Android. And then even included within that, Ryan, one of the next questions I ask is, what apps are they using to text message? We have an iMessages app on an iPhone, which by the way, is extremely secure. And it’s almost impossible to crack into without having somebody’s permission on that. But a lot of people today will use WhatsApp or even WeeChat, or some of other, Snapchat. There’s a lot of others on there. So, it’s important to understand, and this is some of the questions like you would ask for your clients on what they’re using on that. 

Brett Burney:
But when it comes to a general aspect, I’ve got three ways. On one end of the spectrum is exactly what you have just been talking about, it’s the old screenshots. Whereas today, like on an iPhone or even an Android, you can pull up whatever the text message is, take a screenshot. And then you scroll up a little bit more, take another screenshot, scroll up a little bit more, take another screenshot. So, you can do that. In fact, to the point where there’s even a couple of apps that allow you to stitch those screenshots together, so you end up having like a very long message, but it looks exactly like what you would expect with the look, with a green or the blue little bubbles. And so, that helps when you’re having to authenticate it or understand what people need to have. 

Brett Burney:
So, that’s one end of the almost like the primitive spectrum. It is still the easiest. But you as a practitioner need to know, if I have to authenticate this somehow, if I have to make sure, but we know where it came from, you might need to tell your client, “Make sure you note the day and time that you took those screenshots.” Because there’s not any kind of metadata on there. There could be in the eye photos. But just like anything else, document what you did. Similar to if they were taking a picture with a camera.

Brett Burney:
On the other end of the spectrum, if you want to go full bore and you need everything off of that phone, you’re going to need to hire a professional forensic examiner, right? This is where a lot of us know about this, because we know law enforcement uses a tool typically called Cellebrite, which is the most popular one, Cellebrite. In fact, law enforcement will typically have a little suitcase that they carry around, which the Cellebrite tool is only a small box, but the reason to carry a suitcase is because they have plugs and adapters for all the different phones that they may run into. But what they’re doing there is, they’re doing a forensic copy of the entire phone. Now, that gets everything on the phone. So, then you have to work with that examiner to say, you only want the text messages, or I only want information from WhatsApp, that kind of a thing. And of course, they have to physically have the phone in order to be able to do that. And they have to make sure that it can be unlocked on there.

Brett Burney:
Now, the middle area, I think is the most useful, and I’m finding more and more people doing that, and that is in a general sense using a piece of software on your Mac or Windows computer, and then you are taking your mobile device and plugging it into your computer. And you’re using that software to extract out whatever the text messages are. My favorite these days to use that as an application called iMazing like amazing, but it’s iMazing. Only works on the iPhones and iPads. There’s another one called iExplore. I think there’s one. You may have mentioned PhoneView, something like that.

Ryan Kalamaya:
Yeah. We had mentioned offline. Our assistant had a MacBook. And we were using PhoneView. So a client, for example, just for people that are listening, at least and Brett, you can correct me in terms of iMazing or some of these others, is that a client would bring in their iPhone, we would download all of the iMessages. And there is different ways that we could download all of the iMessages that were stored on the phone. Then we could download iMessages between Eric and Melanie. And then Eric had a girlfriend, then we could download all of those text messages. And then it would go to the voicemails and download that. 

Ryan Kalamaya:
Then at least, we had preserved all that, because I’m sure you’ve dealt with it, where the person, they upgrade their iPhone because they want the new iPhone 12, and they turn it in, and then it’s gone. I’ve had a case where we asked for text messages, iMessages included, and the person had it set to automatically delete those messages. I want to follow up and ask, first of all, the iMazing, is that just for Macs? And is it the same process to download the, I described of with PhoneView.

Brett Burney:
Exactly, like what you described, Ryan. You’re right on. There are several of these applications that will do pretty much the exact same thing. Now, the only caveat is, it’ll work on the Mac and Windows, the software that you download. Right? But you can only use iPhones or iPad to get it out. So, an Android is another thing, and I can mention that just in a moment. But you’re exactly right. 

Brett Burney:
There is something to be said many times, the reason that we talk about text messages is, most everything that’s going to be on this phone is certainly from an email perspective, or maybe even sometimes from a photos perspective. We can get from other locations. I’m not going to collect email off of here. I’m going to collect email, if they use the Gmail account, I’ll go to their Gmail account. Or photos, I might go to their iCloud account and download the photos. I don’t have to grab it from here necessarily. I could. 

Brett Burney:
But typically the one thing that we can’t really get from anywhere else is the text messages. And just wanted to let people know that’s why we talk about it in that way. So, it is important to make sure that we can use a tool like this. Most of these tools, I think costs $30 or $40 for one license. I know small firms that use it. I know large firms that use this. It’s more making sure that internally within the system that you’ve got somebody that’s comfortable with it and that knows how to use it. 

Brett Burney:
Because the other thing, you mentioned this, a little bit inside iMazing, once I get a backup of that device, then I can give the device back to somebody. But I can go in and search their text messages, at least up until the time that I took the snapshot. Right? And then I can filter out what I need. 

Brett Burney:
And then what I love about, especially on iMazing, when I find the messages I need, number one, I can say, I want every message to have a date and timestamp on there. Right? So, that helps obviously, in making sure we know exactly when this came out of this, this information and what phone number was used, or where it came from. And you can export that out as a text file or what we call a CSV file, which is very… it looks like a spreadsheet really. 

Brett Burney:
Or you can offer to export it out of the iMazing software as a PDF. And it’s a beautifully formatted PDF that again, has the blue or the green bubbles, when you have the text messages, all the emojis are there. That can be very important as well, because a lot of that sometimes doesn’t translate on there. So, it’s a more of a visual component, which I have found makes people more comfortable with either authenticating it or speaking to it, or frankly, just people can look at and be like, “Well, yeah, that’s text messages.” It looks like a text message, so that you don’t have to argue about that component there, but as much exactly the same as what you just talked about using PhoneView.

Ryan Kalamaya:
So, and I had referenced this other case, it was in a divorce, and we had asked the other side for text messages and it was on specific topics. And so, we asked for text messages between the other party and their significant. It was their boyfriend. And it was regarding the children. So, any text message that related to the children, then the finances, there was some money being paid and some plans for the future about getting married, and relocating. So what we had done is, we had served a request for production on the other side. And we had listed out the topics and the timeframe of which we were asking.

Ryan Kalamaya:
The other attorney is like, “What are you even asking for?” And I said, listen, “I’m not asking for every text message.” If they went to Whole Foods, and they texted their boyfriend, “Hey, are we out of bananas?” I don’t need to know that. I don’t want to see the sexting. That’s not something I’m interested in. But if the boyfriend is saying, “We’re going to get married, and don’t worry, I’ll take care of you.” Or, “Your ex-husband, my client, is a sleazebag.” That is relevant. 

Ryan Kalamaya:
And so, I think people don’t understand that they hear about the search terms in these big civil litigation, or USB, Microsoft, or whatever the case may be. And they don’t understand that this could be Eric versus Melanie Wolff divorce in Colorado. So, how would you advise an attorney who comes to you and says, “I just got this discovery request. I don’t know what this is, how should I approach this?”

Brett Burney:
Well, it’s an excellent question. And I don’t know if there’s an excellent answer for that, to be honest with you, Ryan, other than the fact that you, for example, are hosting this podcast to get this word out a little bit more, just to raise awareness. Again, this comes back to the competency issue. I don’t want to drill that, its a dead horse. But it’s just like anything else, if you normally do real estate law, and somebody comes to you with a construction law case, can you represent them? You can, if you learn about construction law.

Brett Burney:
And today, again, if you agree with my premise and whether you agree or not, it’s the reality that every discovery today involves electronic discovery, then it is incumbent upon you as a practitioner, as a counselor that you need to at least be aware of this. We don’t have a lot of ethics opinions on this. California has one ethics opinion on this aspect. And they basically say, if you have somebody coming at you with e-discovery, either learn about it, find somebody to help you about it, consultant or so, or don’t represent them, right? Those are your options. It’s just like anything else. 

Brett Burney:
And I don’t mean to be flippant about that, and I certainly don’t mean to bring the hammer down, but this is where you’re going to find that information. This is where folks involved in family law issues, divorce, custody battles, whatever the case may be, this is where they are communicating today. And so, as a practitioner involved in this, you have to have some kind of a comfort level with this, even if that means getting some help on this, hiring a paralegal or somebody that can help you understand of these issues. There’s a lot of certification out there for e-discovery practitioners, that kind of a thing.

Brett Burney:
I used to try to soften that blow a little bit, but today it’s just unavoidable. You need to have some kind of a comfort level in understanding how this goes. State courts, I find, Ryan, many times people can get away without being too sophisticated in it for good or for bad. I’ve gone to many state courts, and sometimes the judges don’t even want to touch that kind of a thing. If you are in a federal court, for any reason, you don’t have a choice. Those folks have been educated one side and down the other on all of the issues involved with e-discovery. And I see that continuing to trickle down into the state level. But it is inevitable. And these judges don’t take excuses anymore about, “Well, your honor, I’m not tech savvy. I’m not really computer literate. I don’t really understand what they’re asking for there.” That could still fly in some places, but I see those days waning, if that makes sense.

Brett Burney:
I don’t mean to Debbie Downer kind of a thing here, but I’m just saying, this is the reality of the practicing world today. And maybe more, especially in the realm of family law too, because again, this is where your clients are communicating. And it’s not even just that, we can do social media as well. We can do email. People get fake Gmail accounts, because they don’t want their spouse to be reading something. I mean, there’s just all kinds of ways that people are going to get to you to try to beat the system.

Ryan Kalamaya:
And I want to ask you about the email and the social media. But I mean, the judge fortunately was a civil litigator in the case that I had, and there were sanctions entered. And we’re going to deal with that in a whole different other episode. But the attorney, basically had not advised his client to preserve information. And so, the information was just gone. She couldn’t produce the text messages. But email, you mentioned that everyone uses it. What are your tips or ways to collect that? You mentioned not necessarily going into your screenshot of your Outlook or whatever app you have on your iPhone. What are the ways that you would ask or advise people to collect emails and treat emails with in discovery of a divorce?

Brett Burney:
Great question. And again, there’s all kinds of different ways to get access to it. I’ll give you two quick little tips. If you are using Microsoft Outlook, which this is mostly going to be found more professional type setting, that you’re using software to access your email, whether it’s Gmail or Outlook. In Outlook, you can do an export of a folder, for example. So, sometimes we just ask the client, “Can you copy these files into this sub folder?” And you can export out that sub folder as what we call a PST file. It stands for portable storage table, but it’s really just the lingua franca of how we transport emails, not just emails but attachments. It’s almost like a compressed zip file, if you will, that can hold one email message or 10,000 email messages. And all the attachments are intact. All the metadata is intact. So, it preserves it very, very well. 

Brett Burney:
Now, most of the time when I find individuals, probably folks involved in family law issues, they’re not using Microsoft Outlook on their home PC or so, they’re probably using something like a web browser, Google Chrome to go to Gmail, gmail.com. Everybody’s got a Gmail account, right? Because it’s free. It’s great. It works very well. And in that Gmail account, one of the tips that I even use on a variety of different levels is, you can go in, do a search within your Gmail, which of course, Google is known for. You can find certain messages that are maybe relevant, or they may need to send to you as the practitioner, and you can label them, right? We don’t call them tags in Gmail, they call them labels.

Brett Burney:
But then you can go to another part of the Google infrastructure, as it were called Google Takeout. And I always think of it like a Chinese takeout boxes or takeout from food, because that’s literally what they were using that as a logo at one time. It’s called Google Takeout. And it’s this long page of all of these different services from Google that you can export your data out of, one of them being Gmail, for example. And inside Gmail, when you say export Gmail, you don’t want their entire inbox. You just want to export the little file that has the labels that were applied to those email messages. Now, that comes out exported as an MBOX, M-B-O-X file, is a little bit different than PST. But PST and MBOX are two standard file types, that pretty much any kind of an e-discovery service provider can handle and put up, so that you can review later. Because that’s ultimately where you get into, is that you, as a practitioner can review that, decide what’s going to be relevant or not, privileged, et cetera, before you produce that.

Ryan Kalamaya:
We had used Logikcull within my firm. It was a web-based, where we would upload the Word doc, the email, that native email. So, it was that inbox or whatever it is. And that it was overkill for what we were using. And they changed their pricing format. But it was fascinating. And you referenced e-discovery processing services, and I want to ask you about that. But we would, instead of, earlier my example was the printout of the email. And whenever you have the email chains, it’s like, are you capturing all of the email chains? And with Logikcull it unpacked all the different replies and the attachments. What are the kind of email or the e-discovery, rather, services that you would recommend, or that you’re familiar with?

Brett Burney:
Excellent question. And I’m so glad you touched on a couple of those things. One of the other slides that I put up a lot of times, as I say, Outlook is not a document review platform. Because if you’ve got a client that sends you a PST file, came out of their Outlook, well, then you’re thinking, “Well, I’ve got Microsoft Outlook on my computer, I’ll just use that to look at the emails. And I can produce out of that.” I understand the thought process, but I use the word purposefully, you’re co-mingling then evidence, it’s electronic evidence from your client, with your work product. 

Brett Burney:
In fact, I had one firm call me and they said, “Well, our attorneys used their Outlook to review the client evidence, and now they want to produce it.” Well, when you print an email message from your Outlook, whose name is at the top of that print out? I mean, I tell people we don’t have all the metadata. They’re like, “Well, when you print it out, it’s got the two, and the firm and the subject line.” “Yes, I understand. But your name is at the top on that. That means your fingerprints are on that evidence.” It is not a tool, which is exactly why I typically recommend services exactly like Logikcull. 

Brett Burney:
I’m a big fan of Logikcull. They’ve been around for a very long time. These are cloud-based services, Ryan, that… There’s others that are very similar, Everlaw, for example, Disco. And basically, I tell people, if you can upload a picture to Facebook, you can upload a PST file to Logikcull. Because what they do is, they process that information, exactly what you talked about. They blast out that PST, but they keep the attachments together with the original message. They can show you what other replies and forwards were in that same conversation. We call that a conversation thread. All of that is incredibly important. 

Brett Burney:
Now, there’s a couple of others, I’ll mention real quick. Another system that I find that may not be quite as overkill, because I find that exact same spot. Another one is called Goldfynch, F-Y-N-C-H, Goldfynch. It’s a startup company that they have very good pricing on some basic review tools. 

Brett Burney:
And then another one quickly, I just talked with the founder, yesterday. They’re based out of Denver, is called indexed.io, fantastic company. And in fact, they even have a platform where they can do some of this text messaging. They call it mDiscovery, mobile discovery. I just talked with him yesterday. And I’ve been very impressed with them coming on board and adding some of those services. 

Brett Burney:
So, these platforms, again, cloud-based. You don’t need to download software, you can access it through your browser, or you can upload and ingest information, it processes it, and then it’s reviewed. And then, most importantly, quickly, when you are ready to produce it, you then have the options of how you’re going to produce. If you’ve got somebody on the other side that just says, “Well, just send me the PDFs.” You can do that. 

Brett Burney:
If you’re up against a bigger firm that may have internal Brett Burneys or a staff that does litigation support, they’re going to tell you, “Well, we need a load file with a CSV or a DAT file. And we need the OCR text files along with the single page TIFF images.” Now, if you’ve never done this before, that’s going to be extremely overwhelming. But all of these tools across the board will allow you to do that. So, at least you have the capabilities. You may need a little bit of handholding to understand how to do it, but using these tools gives you those capabilities there.

Ryan Kalamaya:
Yeah. If I’m not mistaken, I think Indexed might be a Colorado company, and it may have an association with the Colorado Bar Association. So, for those Colorado lawyers out there, I think there’s a discount. We’ve used them in the past. And to piggyback on what you said, Brett is, I mean, we’ve used these services in the past, and you basically upload, they might be bank statements, they could be emails, they could be pictures, and then you can tag them. So, when you do the production, you can tag all the pictures together. All the pictures might be of children, social media, which I want to come back to.

Ryan Kalamaya:
But it was really nice, and they’re having a couple of cases, where we’ve known to ask for the native or the digital, the underlying information. And we get to see when was that Word document created. “Oh, that spreadsheet was created last week. Well, funny that it purports to be from a loan, and in calculating the interest for a mortgage from five years ago.” Which might, make or break the case. 

Ryan Kalamaya:
You mentioned social media. Can you give us some examples of data collection? Let’s say Eric and Melanie, they’re going through divorce. And Eric takes his girlfriend out to a really nice restaurant, posts a picture on Instagram and Facebook, but then later claims that he doesn’t have any money. That picture might undercut that. Or Melanie is out there with pictures of her shopping escapades. How do you collect data from social media and what are the tips that you have based on some of those kinds of scenarios?

Brett Burney:
Can I just say quickly though, on that email and put it into a review platform, having that metadata, that’s what we call that, is the metadata, right? About the information, about when that document was created, when it was last edited, when it was last saved and where. If you don’t have the native files, you’re not getting that information. 

Brett Burney:
In fact, a good friend of mine, Craig Ball, he does a lot of writing on e-discovery, he always talks about the fact that if you are getting a print out or a PDF of a Word document or an email message, you’re getting less than, frankly, what you’re owed. And you’re getting less as far as a workable or flexible information. In other words, especially when in the business side, we have the right to receive information in the way that it was ordinarily stored, right? In the course of business. Well, we don’t store emails in PDFs. Anyway, I just had to underscore that, because this is such a great point that you made on that aspect. And just know that people may not want to always ask about natives, and you don’t always necessarily need the native files, but if you don’t get a native file, you’re not getting all of the information that you are owed. And you just have to make that decision of whether that’s the way that you want approach it or not.

Ryan Kalamaya:
I mean, I could tell some more stories about how the metadata really mattered, pictures, when was that picture taken? And like an email, like BCC, they BCC someone which might waive the privilege, and/or an attachment, especially if you’re dealing with a case involving, “Well, we didn’t disclose this in time. You can actually show when it was disclosed.” A whole host of different reasons. Social media, what are the tools that you’re using to collect social media?

Brett Burney:
Exactly. Okay. So first of all, what I typically see people doing is one of two things, either taking screenshots on their computer or on their mobile device, or they’re printing the page to a PDF from their web browser, right? The problem is the way that the web is designed today and certainly social media components, it’s so dynamic in the way that different comments, you don’t see all the comments every time. There’s a lot of information that you could be missing on some of that. 

Brett Burney:
So, when you take a screenshot, depending on how you’ve set it up on the browser, you might get something that looks exactly like what it looks like on the screen, but you got no metadata, other than the fact that you took a screenshot on this time. If you print a PDF, typically if you’ve done this before, many of us have, if you print a webpage out, it looks nothing like what it looks like on the screen. Right? And that’s simply because there’s ads and dynamic information that comes in and it just restructures the entire page a lot of times.

Brett Burney:
So, can those two methods work in some cases? Yeah. As long as again, you know the risks that you’re taking, maybe or maybe not, as a practitioner, that’s part, I think of the legal practitioner’s job. As a counselor, you got to know, is it worthwhile just to have that? Or do you need something more? We definitely need something more many times when it comes to the social media. 

Brett Burney:
So, I’ve got three tools that I typically work with. One is called X1. It’s exactly the way you spell it, the letter X and the numeral one. They’ve been around for a long time. They used to be a desktop search company, but now they have a social discovery component, which is really good. It’s been around for a long time. It takes a lot of overhead though, is the only thing I would say. I know a lot of large law firms that use this or service providers that use X1. And it is good. It will collect everything from a Twitter feed, from an Instagram feed, YouTube, Facebook, et cetera. I just think it’s a little bit overkill for most of the time. We just want to get this Facebook posting or this profile or this, what they put, typed on Instagram. 

Brett Burney:
So, two other companies quickly, Page Vault based out of Chicago, Page Vault. If you go there, they have a page where they can do, I think they call it on demand. So, you can go there and say, “I need to grab this page. What would you charge me for it?” And it’s usually a few hundred dollars or so. But what’s great is that they give you a PDF printout of the entire page or whatever that you’ve requested. Usually it’s in a report form, and then they will even provide an affidavit to show you that this is what they did. They have what we call a Hash file or a stamp on there that shows exactly when it was taken. 

Brett Burney:
And the last tool, quickly, is another company I’ve worked with is called Pagefreezer, just like it sounds, Pagefreezer, which is, they’ve done several things, not just in the legal context, but they have a small tool that I’ve really been impressed with. It’s a Google Chrome extension. So, it works inside Chrome. And it’s called Web Preserver. So, if you go to webpreserver.com, you can check this out. But it sits in your Chrome browser. 

Brett Burney:
So, if you could go to a Facebook page, you can say, “I wanted to collect this page.” And it basically takes on one level screenshots of everything. So, it looks exactly the way that it’s supposed to look, but it will also expand out all of the comments, for example. In YouTube, if you scroll down, it doesn’t show all the comments until you scroll to the bottom, and then it’ll reveal some more. It does all of that for you on the backend. And it provides you with a PDF outlay there. 

Brett Burney:
So, I went through those really quick, but sometimes screenshots, print a PDF is fine. Many times today, though, it’s not enough. And so, X1, Page Vault and Pagefreezer/Web Preserver, those would be some tools that I see people using these days.

Ryan Kalamaya:
Well, Brett, thank you for the time. We could go on and on.

Brett Burney:
I know. I got more to go. 

Ryan Kalamaya:
Yeah. I mean, maybe we’ll be bringing you back and talking about, I mean, this is a podcast-

Brett Burney:
Oh, that will be great. Yeah.

Ryan Kalamaya:
… but we haven’t even scratched the surface with audio or video. But where can people find you? What’s the best way… And we’re going to have links to these platforms or the apps that you recommended, and the services that you recommended in the show notes. And I know you’ve got a podcast. We did an episode together. But where can people find you in Apps and Law? Where can people find out more about you, Brett?

Brett Burney:
First, let me just say thank you, Ryan, for not just having me on, because obviously that makes me happy, but just the fact that you’re highlighting this, right? I mean, you’ve obviously had some experience in your background in knowing how crucial and important this is. And so just, I’m so glad that you’re doing this as a service to your other colleagues across the state and the country, and the fact you’ve got to be aware of some of this. So, thanks again for having me on.

Brett Burney:
But yeah, for anything questions on the e-discovery side, it’s burneyconsultants.com. That’s my main website. I’m happy to answer questions. I tell people, I’m happy to jump on a 10, 15 minute phone call to at least point you in the right direction or let you know if there’s something more that you need. So, don’t hesitate to reach out.

Brett Burney:
And then my fun side gig is the Apps in Law. I started a blog appsinlaw.com, where I do reviews on apps for iPhones and iPads, and Android devices. And that’s what I had you on, Ryan. We were talking about… I’m not even going to tell people what we were talking about. They can go to appsinlaw.com and check it out, after they check out this podcast. But thanks for being on that. And that’s a fun thing. A lot of people enjoy, because we’re pretty much all using these mobile devices, right? We’ve got these everywhere we go. Not just from the aspect we’re talking about with clients, but as practitioners, we’re using it as well. So, thanks, again. 

Ryan Kalamaya:
Thank you. And until next time, thanks for listening to Divorce at Altitude. This is Ryan Kalamaya.

Ryan Kalamaya:
Hey, everyone. This is Ryan, again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast. 

Ryan Kalamaya:
For show notes, additional resources or links mentioned on today’s episode, visit divorceataltitude.com.Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at kalamaya.law or (970) 315-2365. That’s K-A-L-A-M-A-Y-A.law.

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