Embed Doc
Copy Link
Readcast
Collections

CommentGo Back

New Rules For ElectronicEvidence: The Case For TheDefense

By Sonya L. Sigler

Part Two of Two

Editor’s note:

Last month, we fea- tured the first half of “New Rules For Electronic Evidence — The Case For The Defense.” The first part covered the topics of early discussion of electronic evidence,before the case begins, and meet and confer. For a brief discussion on managing a case, dealing with evolving case strategy, some ramifications of the sophisticated technology involved in electronic discovery, and more, we offer Part Two of the article.

ANAGING

ASE

Attorneys will be required tomake early and potentially far-reaching decisions about howelectronic discovery will be con-ducted. To most effectively safeguard client interests, attorneysneed to be informed about theissues. Some of the questions to befaced early include:•Which custodians’ data shouldbe produced?•For what date ranges?•What de-duplication methods,if any, should be used?•What culling technology or method-ology will be used to reducethe volume of irrelevant data?•What search methodologies, if any, should be used?

GC’s New Discovery Role

Reduce Cost With More Document Review Efficiency

By Steven Harberand Mike Kinnaman

iscovery today involves significantly more digital content to sift than everbefore, resulting in a costly and time-consuming start to litigation or regu-latory investigation.In fact, one of the most common complaints from corporations today is that thecost of discovery is simply too high, making compliance with regulatory rules andlitigation requests extraordinarily challenging — and at times even crippling. Butcorporations can control these skyrocketing costs by taking a more active role inmanaging and preparing for discovery.The impact of e-mail is staggering. According to a recent study published by

The National Law Journal,

corporations are projected this year to spend more than $1billion for electronic discovery services, and nearly $5 billion to manage e-mail. Although these numbers seem large, they pale compared to the additional billionsof dollars that corporations pay law firms to conduct discovery. An industry con-sultant tells us that one of his clients is spending $36 per document to review, fromstart to finish. This seems high, yet most corporations have no idea what they arepaying per document. The fact is that most corporations never ask their law firmhow much they charge per document, nor have they conducted any type of analy-sis to identify the true, total cost of discovery. The problem with this is that withouta figure to use as a baseline, corporations will never truly know whether they arepaying too much, and so will never be able to demand cost-savings. Imagine thedollars you could save your business if you knew what discovery

should

cost.To ease the discovery burden for clients, law firms should develop consistent andrepeatable procedures that can be deployed firm-wide for conducting large-scaledocument reviews. Many thought-leading law firms include an internal practicegroup in their litigation department that offers clients document review, production,litigation-support and counsel directly related to discovery. Such firms benefit

In This Issue

GC’s NewDiscovery Role . . . .1New Rules ForElectronic Evidence:The Case For TheDefense, Part Two . .1Staying Up To SpeedIn A Fast-Changinge-World . . . . . . . . .5e-DiscoveryDocket Sheet . . . . .7Computer ForensicsDocket Sheet . . . . .8

Volume 2, Number 8 • December 2005

continued on page 2 continued on page 4

LAW JOURNAL NEWSLETTERS

e-Discovery e-Discovery

LAW &STRATEGY LAW &STRATEGY

™

December 2005

clients by combining innovative tech-nology and a trained staff to delivera much lower total cost of discovery than traditional methods allow.

NDERSTANDINGTHE

OTAL

OSTOF

ISCOVERY

The sheer expense of the discov-ery process is prompting a newdialogue between corporations andtheir law firms. In highly regulated orlitigious companies, the generalcounsel is gaining more visibility intoa firm’s document-review costs andefficiency. This can start with a fewsimple questions:• “How will your firm handle my com-pany’s document review and howmuch will it cost?”;•“Is there a tested plan that includesthe use of leading-edge technology and an emphasis on project man-agement and process?”;•“Are there documented quality-con-trol measures?”; and•“Is there an ability to scale reviewresources, and a budget for thetotal cost of review?”By asking law firms how they planto respond to a discovery request, theGC gains a better understanding of the process, and ultimately will bebetter equipped to assess and preparethe company for discovery requests.Unfortunately, many companiesstill don’t learn the process until aftera lawsuit has hit. This reactive way of handling discovery leads to ineffi-cient and painful experiences thatcan be avoided with proper prepara-tion. The five strategic steps outlinedbelow can help to educate counsel — and to prompt questions internal-ly about discovery planning. Usingthis map, corporations can begin todevelop an effective document-review strategy — whether theprocess is conducted in-house or by an outside law firm. The result canproduce not only dramatic time- andcost-savings, but also bring increasedcontrol of the process, and helpcounsel fashion the strongest case your company can present.

CTION

LANFOR

ISCOVERY

ANAGEMENT

Develop a strategic plan.

Engagein careful planning up front to mini-mize expense and complications.Develop a project plan, workflowoverview, organization chart, andreview criteria

before

your company receives its next discovery request.The right plan can help communicateexpectations and ensure that theright people are doing the rightthings at the right time, for the rightprice, which will provide a smoothprocess and a reduced total discov-ery cost. Who are the right people?Consider employing at least a projectleader, manager and technologist todevelop the step-by-step plan forresponding to discovery requests.Many corporations now have a dedi-cated discovery team to better controlthe discovery process, including col-lection of data, data-processing,document review and production.If focused, this plan can be createdin a few weeks with support from your law firm, vendors and otherconsultants that fit into the plan. Theright plan will provide a repeatableprocess that encompasses the discov-ery lifecycle, including the combinationof vendors and technology requiredfor each step. Once in place, developan estimate of your annual budget fordiscovery, parsing out the individualfactors that have an impact on your

e-DiscoveryLaw&Strategy

❖

www.ljnonline.com/alm?edisc

PUBLISHER . . . . . . . . . . .Sofia PablesEDITOR-IN-CHIEF . . . . . .Michael Lear-OlimpiMANAGING EDITOR . . . . .Steven Salkin, Esq.MARKETING DIRECTOR . .Stephanie BowlandMARKETING PROMOTIONSCOORDINATOR . . . . . . . .Rob FormicaMARKETING ANALYSISCOORDINATOR . . . . . . . .Traci FootesGRAPHICDESIGNER . . . .Crystal R. HannaBOARD OF EDITORS WHITNEY ADAMS . . . . .Cricket TechnologiesReston, VA MICHAEL A. CLARK . . .EDDix L.L.C.Milford, CT PRASHANT DUBEY . . . .FiosPortland, OR MICHELE C.S.LANGE, ESQ. . . . . . . . .Kroll OntrackEden Prairie, MN ALEXANDER H.LUBARSKY, LLM, ESQ. . .ZantazSan Francisco ANTHONY MERLINO . .DolphinSearchPhiladelphiaKEVIN O’CONNOR . . . .TechLaw Chantilly, VA DAVID H.SCHULTZ, ESQ. . . . . . .Kroll OntrackEden Prairie, MNe- Discovery Law & Strategy™ is published by Law JournalNewsletters, a division of ALM. © 2005ALM Properties,Inc.All rights reserved. No reproduction of any portionof this issue is allowed without written permission fromthe publisher. Telephone: (800) 999-1916Editorial e-mail: ssalkin@alm.comCirculation e-mail: subspa@alm.com The publisher of this newsletter is not engaged inrendering legal, accounting, financial, investment advisory or other professional services, and thispublication is not meant to constitute legal,accounting, financial, investment advisory or other professional advice. If legal, financial, investment advisory or other professional assistance is required,the services of a competent professional personshould be sought.e- Discovery Law & Strategy POSTMASTER: Send address changes to: ALM1617 JFK Blvd., Suite 1750, Philadelphia, PA 19103 Annual Subscription: $399

Published Monthly by:

Law Journal Newsletters1617 JFK Boulevard, Suite 1750, Philadelphia, Pa 19103 www.ljnonline.com

e-Discovery e-Discovery

LAW &STRATEGY LAW &STRATEGY

™

continued on page 3

GC’s Role

continued from page 1

Steven R. Harber

is a co-founder of DiscoverReady LLC (www.discover-ready.com), which focuses exclusively on reducing total document-reviewcost. Harber has worked in automatedlitigation support as a paralegal, attor-ney, application developer, services vendor and consultant since 1991. Heholds a B.A. from Bucknell University and a JD from New York Law School. You can reach him at steve.harber@discoverready.com.

Mike Kinnaman

is vice president of marketing at e-dis-covery firm Attenex (www.attenex.com). He has more than 10 years of technology-product and channel-mar-keting experience. Kinnaman is amember of the Sedona Conference Vendor Council, and of the ElectronicDiscovery Reference Model Project. Heholds a B.S. in journalism from theUniversity of Kansas. Reach him atmike@attenex.com.

December 2005

costs. This baseline provides docu-mentation for the true expected cost of discovery, reflecting the savingsachieved through pre-project planning.

Create a review methodology.

Once you’ve developed a plan, it willbe critical to create a systematic anddefensible methodology that can betailored to meet the needs of each andevery discovery request. If you arehaving difficulty, consider bringing ina vendor to help identify reviewguidelines and develop a documentedprocess that includes processing,review and quality control. Although discovery and its many phases are often depicted as a single,linear process, the fact is that a solidreview methodology must be flexi-ble. Key information found duringreview often affects the review strat-egy. Consider focusing the early phases of review on key custodiansto confirm review criteria, learn addi-tional facts, adjust assumptions, esti-mate review rates, and prepare aninitial budget.One of the real headaches for cor-porations is the amount of wastedexpense during document review.Despite the many programmaticculling techniques available today,typically more than 80% of the contentthat is delivered for review is irrelevantto the matter at hand. Much of thepotential savings in this process canbe found by identifying relevant mate-rial and eliminating irrelevant materialas quickly as possible. Many corpora-tions are employinga multi-passreview strategy that includes a first-pass triage. During triage, each docu-ment is reviewed for relevancy.Irrelevant documents are suppressedfrom further review and relevant doc-uments are passed downstream asdefined by the review strategy. A more efficient and higher-quality review process can be constructed by putting more experienced resources ononly relevant or potentially relevantmaterial. First-pass reviewers will thenhave an easier job of declaring docu-ments Not Relevant, Potentially Relevantor Potentially Privileged, leavingthe more substantive privilege andissue-based determinations for themore experienced second-pass review-ers. This simple step shrinks thehaystack of information, and creates amuch smaller and focused documentset, opening the door to faster reviewand reduced review fees.

Be active in selecting the right technologies.

Corporations are rapid-ly adopting leading-edge software tobetter combat the volume of informa-tion requiring review. One examplecommonly employed in a multi-passreview is software enabling a visualand concept-based organization of electronic documents rather than amore traditional “page-by-page” linearapproach. This software is provenacross multiple examples to effective-ly and accurately identify relevantdocuments without having to developcomplex search terms. Imagine youare searching for all documents relat-ed to someone named Madame X.Using sophisticated technology, thesearch result shows not only directmatches, but also visually illustrateshow Madame X is related to other doc-uments, concepts and individuals in thereview pile. Reviewers can then isolaterelevant documents, and irrelevant doc-uments can be quickly removed. Theresult is improved accuracy, reducedreview hours and a quick assessmentof key information.Consider these other importantfunctions of a technology:• Enables reviewers to get up and run-ning quickly, with minimal training;• Makes documents quickly availablefor review;• Keeps documents in native format,eliminating expensive pre-produc-tion steps;• Offers de-duplication and near de-duplication functionality to safely reduce the volume of reviewedinformation;• Presents a visual interface that en-ables reviewers to easily view doc-ument concepts, interrelationshipsand communication networksagainst a timeline; and•Arms project managers with robustreporting to assess review speedand facilitate quality control. And, most important, when selectingtechnology, make sure that you under-stand the big picture of your purchase.Often, the technology price may bemore costly than expected, but consid-er its impact on the total cost of dis-covery. One of the biggest mistakescorporations make when selectingtechnology is to make a decision oncost of technology in a vacuum. Whatif your new technology could save youfour or five times the cost of review?Challenge the technology vendor tojustify expense by demonstrating thetechnology’s reasonable expectedreturn on investment.

Invest in project management.

It’s a fact: Most lawyers do not haveextensive project-management train-ing. Due to the sheer volume of mostrequests and that volume’s impact onthe review process, project managementis a critical component of managingdis-covery and review. With ongoingtracking of progress and adjustingthe review process, you can ensurethat your plan is on target and thatany deviations from the original planare quickly brought to the attentionof the rest of the team so that adjust-ments can be made. You may find it hard to identify aproject manager on your legal team.Outsourcing this function can often bea faster way to get started; then, insteadof dealing with multiple vendors, offi-cers and parties, your legal team canfocus on the legal issues with the addedassurance that a consistent process isbeing managed and enforced.

Implement quality control and metrics.

By establishing a quality-con-trol plan and document-review metrics,GCs will have more confidence in theprocess, and in the results. A quality-control plan ensures that your reviewstrategy is being executed in the man-ner intended and will answer questionssuch as, “If I have someone reviewing1000 documents and she says that 500are responsive, who’s going to check tosee if she made the right decisions?”Some methods for achieving quality control include applicable technology,statistical sampling and comparingresult sets with those of other reviewers. With quality control in place, a GC canbe confident that the review was donecorrectly. Valuable details related to electron-ic-document processing and review

e-DiscoveryLaw&Strategy

❖

www.ljnonline.com/alm?edisc

continued on page 4

GC’s Role

continued from page 2

of 00

Sigler Article 12 2005

387 Reads

Info and Rating

Category:	Magazines/Newspapers
Rating:
Upload Date:	01/31/2009
Copyright:	Attribution Non-commercial
Tags:	magazines ediscovery Litigation sonya sigler cataphora cost control measures magazines ediscovery Litigation sonya sigler cataphora cost control measures (fewer)