ESI Investigation 101: Finding the company big mouth.

I talk a lot about the difference between document review and document investigation, but today I’m going to start the first in a series of posts that give some pointers on investigative techniques that can help those of you who are more inclined to approach a collection of ESI like a detective rather than say, a data entry clerk.

Today’s investigative tip is going to focus on finding the big mouth in a collection. Every collection has at least one, and if you’re lucky, several. Why do you want to find the big mouth? That’s easy: Because they talk. And they talk. And they go on record and express their dismay, and delight, with everything and everyone. And they do so often because they just can’t help themselves. It’s a part of their personality. In forensic linguistics we call this sort thing authorship profiling.

Before delving into finding the talkers in a collection, I want to back it up a little. I want to give a brief investigative primer to put us in the right framework for the task at hand.

There is more than one reason to investigate a document collection. Sometimes you investigate to get a lay-of-the-land in terms of the existence, as well as the extent, of content-of-interest. Sometimes you investigate the communicative habits of the persons-of-interest in your collection, with an eye toward determining who is talking about what topics and with whom. Sometimes you just go in and find the dirt outright, because really, that’s what it all boils down to a lot of the time.

Sometimes it is extremely important to investigate a collection to determine what isn’t present, as much as what is in there. It’s not just the absence of particular ideas or information that creates gaps in your collection, but it is also the presence or absence of a variety of types of computer-mediated communication that speak to the quality of your collection. And we all know that the outcome of good investigative efforts hinge on a good data set. So determining the quality of a collection of produced ESI is something best done without delay. For example, do you know how much email versus edocs you should have? Do you know how to create a norm of distribution for communication patterns so you can have visibility into up-ticks in email quantity? A flurry of email activity surrounding a particular date or custodian or topic can be a great way to generate productive investigative leads…

But I digress. Sort of. In fact, determining patterns of communication is a first step in locating that individual that is likely talking about your case themes in abundance. This requires generating an email network analysis, which will elucidate who is sending the most email in your collection, who is receiving the most emailing in your collection, and what individuals are more likely to co-occur on the receiving end of email communications.

So, the first step is looking at who is producing the most email, and the ratio of sent email to received email. Quantity isn’t the only clue you will need to go on here. After all, the quantity of an individual’s email communication is dependent on many things, only one of which may be that they are indeed the company big mouth. However, once you determine quantity, then you can investigate the quality of the communications. Now, I’m going to just do you one solid and give you the things to look out for, the things that generate evidence that you may have yourself a talker on your hands.

  1. Big mouths use a lot of first person singular and plural pronouns. A whole lot. I this and we that, but mostly I this. Big mouths are usually extroverts and extroverts like to be a part of the group, but they also like to talk about themselves, so look for clues in pronominal distribution.
  2. Big mouths use a lot of stative verbs, or verbs that describe how they feel or think. I believe thatI think that… A big mouth will go on record (often inadvertently) with their thoughts on a matter because it is just impossible for them not to do so.
  3. Big mouths use a lot of negative and positive sentiment. Not only do they use a lot of stative verb constructions, but they express a lot of positive and negative emotion about everything from their wonderful family vacation, to the worrisome outcomes of a particular clinical trial.
  4. Big mouths talk about a wide-range of topics, and typically exhibit interesting type-token ratios in their email communication. The more types they have in comparison to the number of tokens, the richer the range of vocabulary they use. It’s not just about how much they talk, but about the variation they exhibit in their conversations.
  5. Big mouths often exhibit an informal, personal style of communication that includes attempts at humor, sarcasm, friendly banter, phatic communication, or those bits of communication we use to solidify personal relationships, such as “How are you doing?” “Hope you are well” and the like. Again, big mouths are often extroverts and exhibit communicative habits that are indicative of the personality type.

Essentially, it is not any one of these things that designates a big mouth as such, but rather the interplay between all of these features. With that, you can now go and create a “big mouth” model and use it to hone in on the custodians in a collection that are likely to give you the most bang for your investigative buck.

For plaintiff attorneys, if you’re really lucky, once you figure out who the company big mouth is, you’ll get to depose them. As my colleague can tell you, if they can’t keep themselves from going on record about anything and everything in company email, then they will be just as likely to be a run away train in a deposition.

For defense attorneys, if you’re really lucky, you’ll identify who the company big mouth is before your production goes out the door so you can mitigate any risk created by their tidal wave of communications.

For in-house counsel, if you’re really lucky, you’ll identify these individuals before any litigation hold ensues, and perhaps gently reiterate your email policy or communication policy with them.

Next week we’re going to look at how to investigate the theme of “profits over people” in a collection of business communications. In the meantime, I will leave you with this piece of sage advice, from one language investigator to another: Figure out what you need from your collection and then just go get it.

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