200706_LA_Lawyer

computer counselor BY RAMANA VENKATA AND MICHAEL A. GEIBELSON Overcoming E-Discovery Challenges with New Technologies ELECTRONIC DISCOVERY has entered the legal mainstream. E-mail and documents were not ordered in any particular way to facilitate electronic documents now dominate business communication, and the review. volume of data continues to increase at extraordinary rates. The recent revisions to the Federal Rules of Civil Procedure (FRCP) rec- Computerized Document Grouping ognize the increasing centrality of electronically stored information New technologies conceptually organize the document collection for litigation and regulatory investigations. As a result, counsel face automatically, based on an analysis of document content independent mounting pressure to control the cost of e-discovery, meet court- of user-selected key words. The software analyzes the combinations ordered time lines, and ensure that personnel with the necessary of words and terms in each document and then compares each doccombination of legal and technical knowledge are available to man- ument to every other document in the collection. When thousands or age e-discovery projects. millions of documents are involved, this task simply cannot be perTo meet these challenges, law firms and their clients can take advantage of a new generation of document review applications. These A common misperception of this process is that the documents e-discovery solutions provide tools for handling electronic information across a range of activities, including data collection and restoraget moved or altered in some way. In fact, they do not. Concept folders tion, forensic data analysis, sophisticated review and analysis, and production. How to control e-discovery costs is a major contain only electronic links to the documents they contain. challenge for outside counsel and their clients. The amount of electronic information that needs to be reviewed continues to increase, but the cost of e-discovery can still be managed effectively. Quality formed manually. The results of this comparison are concept folders. control measures, document organization, and batch tagging can These virtual folders catalog and sort documents based upon the relasignificantly lower the cost of e-discovery and help satisfy client tionships among them. The folders are then arranged into a hierardemands for finite, predictable e-discovery costs. Predictability can chical table of contents that can be further sorted and reviewed. be achieved by taking advantage of new technologies that help attorA common misperception of this process is that the documents neys organize the data collected during discovery according to con- get moved or altered in some way. In fact, they do not. Concept foldcepts and issues. ers contain only electronic links to the documents they contain. As The impact of these processing and review technologies on elec- a complement to concept folders, which are solely based on the contronic discovery is best understood in a brief historical context. tent of the documents, attorneys can create smart issue folders, which Originally, but in many cases to this day, documents were reviewed are based on custodians, date ranges, key words, or more advanced in hard copy only. In some situations, however, printing everything Boolean criteria. These folders capture documents that are of interand reviewing it from the first box through the last, called linear doc- est for reasons not related to their content. Concept folders and smart issue folders facilitate the identification ument review, is likely unworkable, not to mention incredibly expensive and time-consuming. In a matter involving multiple reviewers, of relevant and irrelevant documents before human review. Spam, interoffice party memoranda, IT-related e-mail, and other less releit can also be highly inconsistent and inaccurate. The first e-discovery technology introduced in the 1980s involved vant documents are automatically segregated into easily identifiable scanning hard copy documents and displaying them electronically as folders. Attorneys can then quickly review these documents, taking images that could be transmitted and stored electronically. Electronic advantage of batch tagging operations, and tag documents that are display, however, did not solve the problems with hard copy docu- nonresponsive. The processing and review steps must maintain high levels of ment review; it just substituted one linear medium for another. Optical character recognition software emerged next, which is able accuracy. Correcting a mistake in processing or review can be very to extract the text of documents so they could be indexed and expensive. Fortunately, studies and actual casework have shown that searched. With the subsequent addition of database programs, review- the combination of document organization and batch tagging helps ers were able to code (or tag) documents for particular issues. attorneys conduct high-productivity reviews and minimize errors. Reviewers could search for and review documents (both those originally in hard copy as well as the native electronic documents and e- Ramana Venkata is CEO of Stratify, Inc., and has consulted with large and small mail) for phrases such as “statute of limitation” and tag them appro- firms on e-discovery strategies. Michael Geibelson is a partner with Robins, priately. The original documents remained untouched. However, the Kaplan, Miller & Ciresi LLP in Los Angeles. 46 Los Angeles Lawyer June 2007 How to meet court-ordered deadlines is the second e-discovery challenge facing outside counsel. The revised FRCP has expanded the role of electronic information in discovery and increased attorney responsibility when dealing with electronic information systems. However, the scheduling decisions of courts do not necessarily take into account the time needed to process, review, and produce large volumes of electronic data. This is another area in which technologyassisted review can help attorneys take control of the discovery process. Manual and search-based systems involve linear document review in which reviewers encounter documents on different topics one after another. This is cognitively inefficient, because to make sense of each document and assess it correctly, reviewers must constantly readjust their conceptual frame of reference. This cognitive inefficiency is addressed by organizing related documents together into appropriate concept folders, which enables reviewers to maintain their frame of reference while reviewing entire groups of documents. This enhanced cognitive focus results in more efficient review as well as more accurate tagging. Second, linear document reviews are more susceptible to inadvertent production and potential waiver of privilege due to the inconsistent tagging of near-duplicate documents (such as contract versions in Word, financial analyses in Excel spreadsheets, and strings of e-mail). While document tagging depends on multiple factors, including reviewer expertise and the speed and context of the review, the possibility that two or more reviewers making different judgments regarding near-duplicate documents increases if they review nearduplicates separately. Advanced e-discovery solutions identify near-duplicate documents and group them for review. Whenever a near-duplicate is encountered, the reviewer can directly access all related near-duplicate documents. This enables a single reviewer to review and compare all the instances and versions of a document and tag them consistently. The capability of reviewing near-duplicates together accelerates the review, and even more important, it minimizes the danger of inadvertent production. The combination of concept organization and near-duplicate detection in an easy-to-use review application enables law firms to achieve a major breakthrough in productivity. Although it may seem incredible, reviewers taking advantage of these new capabilities have achieved average review rates of 300 to 500 documents per hour, with sustained bursts of 1,000 documents per hour. Law firms have documented review rates as high as 15,000 documents per day per reviewer. These results represent a major improvement Los Angeles Lawyer June 2007 47 expert4law–The Legal Marketplace NEED? Expert Witnesses ● Investigators ● Legal Consultants Arbitrators ● Mediators ● Private Judges ● Special Masters and other legal support service providers FIND THEM HERE. Established in 1996, expert4law–The Legal Marketplace is the best on-line directory for finding expert witnesses, legal consultants, litigation support, lawyer-to-lawyer networking, dispute resolution service providers, law office technology, and research and publishing. This comprehensive directory is the one-stop site for your legal support needs. Available 24 hours a day! www.expert4law.org over traditional in-house and outsourced search-based systems that historically deliver review rates ranging from 30 to 60 documents per hour. Finally, efficiently managing e-discovery matters is the third challenge that law firms must address. In the past, litigation support personnel within firms, or smaller litigation support companies, were sufficiently knowledgeable and had enough capacity to handle most discovery matters. However, the expertise required to manage matters has outpaced their ability to assimilate and master all relevant technologies. And the high growth in e-discovery matters creates severe resource constraints for litigation support personnel or smaller electronic discovery companies. Foreign language e-discovery highlights these challenges. There has been an explosion of large-scale matters that include documents not only in English and other Western European languages but also languages such as Chinese, Japanese, Korean, Thai, and Vietnamese. If incorrect software or processing techniques are used at any stage of the e-discovery process in matters involving these languages, severe problems can result. For example, search indices can be created that do not correctly identify and retrieve documents for searches containing foreign language key words. Few vendors in the e-discovery community have the type of detailed knowledge required to appropriately handle complex foreign languages. Foreign language expertise across all e-discovery capabilities (data collection and extraction, foreign language document organization, search, annotation, redaction, and production) is critical for a successful review. The size and sophistication of e-discovery matters creates challenges for outside counsel. When matters involve hundreds of gigabytes or terabytes of data, the ability to increase the volume and rate of data processing while supporting dozens or hundreds of reviewers becomes critically important. This requires a scalable infrastructure that can handle new matters quickly. Now recognized by the FRCP, electronic information has assumed a central role in discovery. It has also created pressure on outside counsel to control the cost of e-discovery, meet court-ordered deadlines, and manage e-discovery projects. To meet these challenges, law firms and their clients should take advantage of the newest generation of technology-assisted review applications that provide advanced capabilities. Automatic concept organization and near-duplicate detection are two relatively new tools to help attorneys meet the still-growing challenges of e-discovery. These capabilities help teams accelerate review while making it more accurate and consistent. ■ 48 Los Angeles Lawyer June 2007