E-discovery demystified

Electronically stored information (ESI) is replacing mountains of paper in today's business world. But for some lawyers, therein lies a new terror - how to tackle the review and production of electronic documents. Is this really a massive leap from traditional comfort zones? And can technology simultaneously make the process more efficient and less expensive?

In business, ESI exists in a bewildering array of formats and locations: laptops, emails, BlackBerrys, intranets, accounting systems, instant messages and everything in between. The prevalence of technology within the workplace has caused an explosion in data volumes. Sifting through it to review potentially relevant documents can leave lawyers feeling as though they are in pursuit of a needle in the proverbial haystack.

When approached properly, the process of electronic document collection and review need not be the cumbersome, time-consuming, technical minefield it is often perceived to be.

In time, it will become 'business as usual' and an accepted part of document review. While lawyers should recognise there is a lot of complexity behind the process and intricate technical details they may not need to know, the key is to understand the process itself.

What is e-discovery?

Electronic discovery (e-discovery) describes the processes of identifying, collecting, processing and reviewing electronic documents, potentially, but not exclusively, for provision to a counterparty or a regulator.

The e-discovery process is probably best imagined as a large funnel into which an organisation's electronic documents are poured. Technology whittles down what could be several million documents to just a fraction of this number, making significant time, effort and cost savings. To all intents and purposes, the process is no different to a traditional paper review, except that technology cuts out a lot of the hard detection work.

This culling process crucially depends on consultation with people who understand the company's IT systems, the individuals who generated the documents and the legal team.

Electronic document collection and review has several purposes. It can be used to identify relevant documents to hand over to opposing counsel; it can be used to help a legal team determine the facts of a client's case; and it is equally relevant as part of an internal investigation. For these reasons, lawyers proficient in the application of technology for the collection and review of electronic documents will be in demand from their clients.

The e-discovery process

The process typically brings together the knowledge and capabilities of a team of lawyers, the in-house IT function, and forensic technology consultants to make the e-discovery process run smoothly.

Communication between the groups helps to focus the process and ensure that the right information is identified. By implementing the appropriate collection scope, culling methodologies and document review workflows, data volumes and costs are reduced.

There are four key stages in the e-discovery process:

The process starts by identifying which key individuals within the corporation may possess relevant documents and the IT systems to which they have access. These commonly include email systems and file servers that store word-processed documents and spreadsheets, as well as individual computers.

Recent trends towards cloud computing, software as a service and outsourced IT functions mean that a company's data may no longer be stored within its four walls. More sophisticated forensic technology consultants are now able to collect, and make available for review, records from structured data systems such as accounting, bank trading and settlement systems or procurement and shipping systems.

Data deleted from a PC or other device may be forensically recovered or historic data resurrected from back-up tapes which store data on company servers at specific intervals in time.

Forensic technology consultants bridge the gap between lawyers, internal IT staff and data custodians. With their knowledge and experience in both the legal and technical fields, they are accustomed to hunting down important links that can move an investigation forward. For instance, interviews with IT staff might determine that an individual had access to various areas of the corporate network.

Discussion with the individual might reveal that he or she only actually used a small subset of those systems or applications. By asking the right questions, forensic technology consultants can narrow the scope and reduce the documents to be collected and reviewed.

Collection of ESI

Given the sheer volume of electronic data that now exists within an organisation, a targeted and focused approach to data collection and review, which can save both time and money, is often needed. This is where consultation during the identification phase can help to pinpoint the most relevant people and systems.

It is imperative that true and unmodified copies of documents are preserved using court-tested, defensible and forensically-sound procedures and technologies to retain original date and time information. Chain of custody records should be maintained to track the preservation of data and subsequent transfers. These help to safeguard the authenticity and integrity of the documents in the event of challenge by a counterparty.

Processing ESI

In consultation with lawyers, parameters for the search and filtering are determined. The processing stage is the phase that the legal team typically does not see but which pares collected data down to the core documents for them to review. The primary aim is to use technology to reduce the collected data as far as possible before the review begins. Although they may not see the processing, the legal team is intimately involved with the selection of different solutions to ensure the appropriate documents make their way to the review team.

The appropriate application of technology helps to cut time and costs spent reviewing irrelevant content. It also improves efficiency and use of resources. Solutions typically used include:

• de-duplication - removes multiple instances of identical emails and documents;
• near-de-duplication - removes chains of emails so that only the final message string remains;
• keyword searching - identifies documents that include certain keywords or combinations of keywords. Keywords can be combined with date ranges and specific senders or recipients of emails;
• language identification - electronically filters foreign-language emails for review by the appropriate language-speaking lawyers; and
• file-type filtering - separates certain file types, such as graphics or sound files.

Document review

Technology, used appropriately, can reduce millions of documents to just a fraction of this number. This non-human intervention adds up to massive savings. However, technology is no silver bullet and there comes a point when documents need to be reviewed and decisions made by lawyers who understand the issues of the case.

Technology can, nonetheless, make further contributions to the review process by improving efficiency and speed.

Clustering is a technique which brings together similar documents so that there is a theme and sequence to the content being read. This helps the reader to maintain a train of thought and speeds up decisions to eliminate documents which, although they meet the criteria, are not material. Lawyers who take a linear approach, clicking through one document after another to determine its relevance, can be limited to fewer than 300 document decisions a day. When documents are clustered by concept, lawyers can be three to five times more productive. In some cases, we've even seen lawyers able to make decisions on more than 2,000 documents a day. That adds up to tremendous time and cost savings.

Technology consultants map workflow processes to the way that legal teams normally work, as the technology flexes to suit them, rather than the other way around, there are no great upheavals in working patterns and routines. An additional benefit is automated quality control. This greatly improves the productivity and output quality of the review team. Review platforms incorporate many other techniques to rapidly identify, organise and prepare large document sets for disclosure or production to other parties.

Making e-discovery easier

E-discovery need not be the minefield it is often made out to be. There really is little difference between electronic and paper data review which involves the collection, review and potential production of boxes and binders-full of printed materials. Although the volume of electronic documents may be greater than paper-based content, the technology that has caused data volumes to balloon also holds many of the solutions.

Appropriate consultation is key. Talk to people in the organisation, find out what the IT function knows and how you can use it and take part in interviews with data custodians. Work with forensic technology consultants to leverage their experience of document workflows, agree parameters for searches and culling methods and find out how far technology can go in refining your search to save time, unnecessary effort and money for your client.

With e-discovery, the needle in the haystack is not as elusive as it might otherwise be.

Craig Earnshaw and Nick Athanasi are managing directors at FTI Consulting.