Just a Few Days

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Last night I noted that current news reporting suggests that the FBI has not even determined whether any of the Huma Abedin emails are new – i.e., they have not confirmed how many if any were not already produced and scrutinized by the FBI in the investigation that ended in July. Now we’ve heard from TPM Reader GL (not actual initials) on the amount of time it would take to ascertain such information. According to GL ascertaining how many duplicates there are and a basic review of whether they are relevant to the investigation would likely take only a few days.

I’m writing because I’m hearing news reports (Pete Williams/NBC) that the FBI has said it cannot review the new Abedin/Wiener email production in time for the election. I’m an attorney with over a decade of federal law enforcement experience, currently in a senior role [REDACTED] I have up-to-date eDiscovery experience, and review large document productions, sometimes in the midst of fast-moving litigation and even trial, on a regular basis.

To the FBI’s position, I say — it depends on what your definition of “review” is. If they mean that a human being at the FBI won’t be able to lay eyes on every single document in time, that’s one thing, and probably true, at least without a disruptive reallocation of resources. But this is much more relevant: if they mean to say that they cannot confidently get the gist of what several tens of thousands of emails contain in the space of eleven days, that’s ridiculous. Ordinary eDiscovery document management tools, to say nothing of the newest AI-based review tools, can be used quickly to identify a set of potentially relevant documents for review almost instantaneously, even for productions much larger than the one at issue here. It’s important to use a high-quality set of search terms. These the FBI surely has on the shelf, having previously investigated this matter, including reviewing other doc productions from Secretary Clinton herself. Having identified document “hits,” human beings at the FBI then need to pass their eyes over the responsive documents. This human doc review is what’s relatively time-consuming. But in tens of thousands of emails in a dump from an individual’s PC, it is highly unlikely that more than a small percentage are even potentially going to be hits, i.e., worth reviewing. This means that the manual review should not take long — an attorney or paralegal doing doc review normally goes through at least hundreds of documents in a day. So with even a small commitment of labor, the FBI should be able to get its arms around what is in this production within just a couple of days, at most. Finally the obvious point should be noted that because a document is responsive to a search term does not mean that it’s actually relevant to the investigation, and in fact most aren’t — that’s why you have a second-level manual review.

Now, it’s one thing to identify potentially hot documents, and it’s another to go through supervisory review and make an institutional determination about their significance, if any, to your investigation. But, really, imagine that there are hot docs in this production. Given the numbers I’ve run through above, the possibility that more than a few dozen such docs exist (if any exist at all) is minimal. The managers in question could review what they need to in less than an hour.

Put simply, if the FBI starts work on this on Monday, they should be able to have a confident sense of what they have in hand by COB Friday. And, especially if they were to put a few extra people on the project, probably several days sooner.

It seems elementary that de-duping the emails would be even faster, almost instant. I confirmed this in a subsequent exchange with GL.

Clearly making a final determination is a decision-making process that can be more complicated and time-consuming. But Comey seems to have tossed this bombshell into the last two weeks of the election with no information at all about how relevant any of these emails may be. It seems like quite a lot of highly relevant information could be learned before the election. Similarly, such a basic determination could have been made prior to contacting members of Congress in the first place.

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