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Scared Straight? Reviewing Excel Files in the Wake of Wells Fargo

Wednesday, August 23, 2017   (0 Comments)
Posted by: ACEDS Marketing Team
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Extract from Excel Esquire's article "Scared Straight? Reviewing Excel Files in the Wake of Wells Fargo" posted on August 21, 2017

The Wells Fargo inadvertent disclosure episode provides a high-profile reminder that attorneys who are responsible for reviewing and producing client documents must thoroughly understand those documents.  There were several process breakdowns that led to the inadvertent disclosure of thousands of confidential records, and not all of them were very well explained.  (The affirmation of the producing attorney is available on the New York e-filing website, Index No. 652025/2017 )(see docket entry 36).  But however it happened, as reported by the New York Times, the inadvertently produced material “included copious spreadsheets with customers’ names and Social Security numbers, paired with financial details like the size of their investment portfolios and the fees the bank charged them.”  This might have been a pure eDiscovery mistake–i.e., an accidental production of documents due to tagging errors or miscommunication with the vendor.  But I suspect some Excel ineptitude was at play as well: the producing lawyer may have affirmatively decided to produce certain spreadsheets without realizing that they contained this confidential data.  Excel features such as filters and hidden columns often mean that there is data “hidden in plain sight” that escapes the attention of document reviewers.

That possibility should give us all pause–might we make the same kind of mistakes?  As the producing party, the consequences of failing to review documents thoroughly go beyond just bad publicity. At one end of the spectrum you may fail to produce relevant information, and face an embarrassingly meritorious (not to mention expensive) motion to compel. At the other end, you may inadvertently produce a “treasure trove” of sensitive information that should never have been produced.  Aside from potentially landing you on the pages of the New York Times, that kind of mistake may jeopardize your case, and the representation itself.  If the information contains Social Security numbers or other PII, the disclosure may run afoul of state and federal privacy laws as well.  Of course, as the receiving party, failing to comprehend the evidence produced by the other side means that you may be overlooking evidence that could win the case for you.

The key to avoiding such mistakes is to thoroughly understand the relevant features of Excel.  This can be a challenge because the users–our clients’ employees–are very skilled users of Excel!  They use it all day to create fancy spreadsheets.  It’s their job.  These files are not dumbed down for us when the eDiscovery vendor collects and hosts them for us to review.  That means we’ve got to roll up our sleeves and get our hands dirty–whether we “like” using Excel is not relevant.

Is your document review team up to the task?   


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