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January 2001
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Litigation Support

Electronic Discovery: Why It's Best to Keep Data in Electronic Format, Not Hard Copy

The mythical 'smoking gun' in your case may be sitting in an e-mail inbox.

By Virginia Llewellyn

Electronic Discovery: Why It's Best to Keep Data in Electronic Format, Not Hard Copy EVER SINCE the U.S. government discovered Bill Gates' 1997 e-mail revealing Microsoft's plan to pit rivals Apple Computer Inc. and Sun Microsystems Inc. against one another, lawyers have become acutely aware of the importance of e-mail in the discovery process. Even the most technology savvy executive can become careless with this quick, seemingly confidential form of communication. These days, the mythical smoking gun is more likely to be found in an inbox than a desk drawer.

Whether on the producing or receiving end of electronic discovery, traditionally lawyers have reviewed e-mail in a hard-copy format. This means that each e-mail message is printed out on a separate piece of paper for review, with those deemed relevant scanned and coded back to an electronic format. Not surprisingly, many an associate has been sent to a warehouse to tackle thousands of pages of printed e-mails encompassing years of company communications, all in an attempt to find a few critical documents. That can be a thing of the past. Over the last two years, technology has been developed that allows electronic discovery to be reviewed in its native format -- electronically. This electronic format replaces paper with an interactive workspace on a Web page.

Lawyers can now log in and access a database of electronic documents as if the information was still sitting in Bill Gates' inbox. Within this database, legal professionals can perform all of the functions usually undertaken with paper documents -- including categorizing, Bates stamping, redacting, collating and notating -- all in a fraction of the time of traditional review processes.

Electronic Review

Although a great deal of key evidence is in electronic form, lawyers may not realize that the manner in which they collect, review and prepare that evidence may be as important as the fact that they requested the evidence at all.

When you request that documents be produced in native electronic format, you are able to discover information that is not normally found via a paper trail. For example, an electronic format preserves the metadata contained in each document, which can reveal such information as when the document was created, whether (and when) it was modified, the original author and the identities of "bcc" recipients.

If the author sent messages using nicknames rather than full addresses, an electronic format allows you to discover the true identity of the recipient rather than relying simply on the name that appears on the printout.

Electronic review also lets you follow a seamless conversation thread, from the original message through its chain of replies. Not only can you gauge the lifespan of a conversation, you can also view copies of the message that have been forwarded or access any attachments that became part of the discussion along the way.

Tracking different versions of an attachment can be the key to a case, as when successive drafts of a contract are sent back and forth in negotiations. It is also possible to view every document in its original color, which can be significant when a document includes graphs or charts, or if the author used color to draw attention to a significant feature or a specific passage.

In addition to enhancing the value of discovery documents, electronic review can dramatically reduce expenses. The most obvious savings comes by eliminating duplicate documents.

In "de-duping," data is scanned for all electronic files for documents with the identical author, recipient, modification and origination dates, and file size, in order to delete duplicate documents before posting the information to the lawyer's database.

This way, costs aren't incurred for documents processed or converted multiple times, and lawyers and staff no longer spend billable hours reviewing the same documents multiple times.

The electronic format also reduces the chance for human error, eliminating costs incurred when pages of information are lost, damaged or misfiled. With Web-based databases, a universally available access point cuts the copying, faxing and mailing charges usually incurred to deliver printouts to other readers, such as expert witnesses.

Choosing a Company

Once the decision has been made to work with electronic documents in an electronic format, you must choose a company to handle the data. Here are three elements to consider when reviewing any company:

1. Security and confidentiality.

All electronic discovery companies should have safeguards in place to protect against large-scale problems. Redundant systems, offsite backup equipment, data encryption and firewall security are all very important.

Make sure the company you choose also provides adequate user verification procedures - at a minimum, security should include a user ID/password combination. One of the most secure procedures includes a second ID token, which gives the user a key fob that works in tandem with a constantly changing access code known only to the bearer of the security token.

2. Ease of Use

Reviewing documents in electronic form should not be more time-consuming just because more information is accessible. Although the review process is now more extensive than simply flipping through pages, the process should be as easy as surfing the Internet. Look for a company that offers a user-friendly, Web-based interface with intuitive commands and a set of tools that allow you to search, number and organize documents. These tools should be accessible from the central screen. Make sure the program allows for complex searches.

3. Service and Support

The staff must understand not only how the technology works, but also how it fits into the discovery process. Are problems handled by a lone technician at a call center, or is there a cross-trained employee group assigned to each account to offer more personalized service?

Is personal training for every user provided at no charge? Consider also whether the company charges extra for ongoing support services, seat licenses or other "per user" access or support fees.

Virginia Llewellyn is the director of client solutions for Applied Discovery Inc., based in Seattle.

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