Firms Embrace EDD
By Ashby Jones
FOR litigators, nothing is as tedious as the beginning of discovery in a big case. First there is document collection, then document review, Bates stamping, photocopying and delivery to the other side. It's a process that makes a lot of associates wonder what they were thinking when they signed up to take the LSAT.
But an increasing number of vendors are promising a new, painless approach to big-ticket discovery called electronic data discovery, or e-discovery or "EDD."
EDD, in fact, has become the newest legal tech buzzword. Just wander around any LegalTech, you'll find that every vendor that so much as scans paper documents claiming bragging rights -- from the "Big 4-1/2" accounting firms to DolphinSearch, are marking their territory.
So far, the biggest players seem to be Applied Discovery Inc., and Electronic Evidence Discovery Inc., both of Seattle; Portland, Ore.'s Fios Inc.,and Eden Prairie, Minn.'s Ontrack Data International Inc. (just acquired by Kroll International.)
Change of Focus
Historically, these vendors focused on data recovery -- retrieving info from drowned laptops or in investigations where files had been (purposefully or otherwise) deleted or destroyed. But while vendors (including Ontrack and RenewData, of Austin) still offer data recovery and forensics services, the new generation of vendors focuses more on organizing and processing electronic files that have not been destroyed. The vendors move all of a party's electronic documents into a vast, electronic database. (Some, like Fios, offer online repositories.) Attorneys can then search the database by keyword or concept. This eliminates boxes of paper--and a bunch of associate hours.
Typically, companies "uplift" batches of e-mails and documents electronically into a centralized spot on a network server. The documents are collected from the server and converted into either PDF, TIFF or HTML files, then the database is run through a search engine. In a case featuring hundreds of thousands of relevant documents, attorneys can quickly put their hands on the hundred or so most vital.
9.8 billion e-mail messages are sent daily.
For years, law firms created electronic databases by scanning paper copies of documents into programs. But scanners misread words all the time. So searches of these databases are often inaccurate.
Bypassing paper also allows these vendors to capture a file's "metadata." Metadata is invisible information that programs like Microsoft Word and Outlook attach to each document or e-mail.
For instance, Outlook metadata might include who was "bcc'd" (blind copied) on an e-mail, when an e-mail was forwarded (and to whom); and when the e-mail was created.
"Obviously, this can be very important in setting up a 'Who knew what and when' type of scenario," said Mark Kroese, vice president of marketing at Applied Discovery.
Willkie, Farr & Gallagher recently handled a discovery request on behalf of a client who used four e-mail systems.
"We thought there had to be a better way than printing and rescanning," says Dexter Chestnut, the firm's litigation support coordinator. The firm hired Fios to blend the electronic files into one searchable repository.
"Our attorneys really liked it, it saved our client money, and we captured all the metadata (giving the firm the underlying information about the documents)," said Chestnut. "It really convinced me that [electronic discovery] is the wave of the future."
Marjorie Cohen, a senior litigation associate at New York's Chadbourne & Parke, concurs. "So far, e-discovery has worked incredibly well for us," she says. "It makes associates' lives a lot easier, and is definitely saving our clients money."
Wondie Russell, a partner at San Francisco's Heller Ehrman White & McAuliffe, has used both Fios and Applied Discovery to handle parts of big litigations. She estimates that e-discovery saved her clients "roughly somewhere between 25 and 30 percent." It is also convenient for the lawyers. The vendors enable attorneys to hook into the databases from outside the office.
All three vendors offer a range of pricing options. Applied Discovery, for instance, says it charges "roughly" 15 to 40 cents per page. Fios charges "roughly" between $3 and $5 per megabyte of data converted. EED declined to offer even a pricing range.
"It depends on the size of the job and whether the client needs services like forensic work," said Deanna Schuler, vice president of sales and marketing.
E-discovery has some kinks. There's the issue of how the vendors handle privileged documents that can make lawyers nervous. But the big e-discovery vendors all have sophisticated methods to assure that privileged documents don't end up in enemy hands.
For instance, Applied Discovery lets lawyers mark privileged material in each PDF file. Only unprivileged information is sent to the other side.
Lawyers approach this with caution. "Rationally, we all know these systems can handle the privilege issue," said Geoffrey Howard, a litigation partner at San Francisco's McCutchen, Doyle, Brown & Enersen, "but it's still sort of clunky. And that gives lawyers reason to pause."
Yet, EDD may be unstoppable. Today, nearly every document that comes out of the American work force is created on a computer. Applied Discovery cites recent University of California research that shows that 99.997 percent of new information produced each year is created and stored in digital form (and 9.8 billion e-mail messages are sent daily.).
"Ten years from now, you're not going to see a lot of paper in big litigations," said John Tredennick, Jr., the president of CaseShare Inc. "That certainly bodes well for this industry."
Ashby Jones is a technology reporter for American Lawyer Media Inc. and a contributing editor of Law Technology News.