Automate and Save

A new day is dawning for electronic discovery in corporate environments. Opposing counsels recognize that e-documents stored in proprietary formats or on multiple systems no longer mean that they are inaccessible.

The proposed amendments to the Federal Rules of Civil Procedure, which have been covered extensively in e-Discovery Law & Strategy, expand the rules in regards to e-discovery. Scheduled to go into effect on December 1, unless Congress intervenes to change them, examples of previous types of rulings that the amended rules would broaden include:

• In Rule 26(a)(1), the phrase 'electronically stored information' is added. This could require either party to locate information germane to the case even though the nature of the information is imprecise;
• In Rule 34(a)(1), the phrase 'stored on any medium' is added. This wording is designed to be flexible enough to cover all current technologies and flexible enough to encompass future changes and developments; and
• Rule 37(f) is an entirely new subdivision of Rule 37 and provides provisions for information lost during routine, good-faith operations. (From, Summary of the Report of the Judicial Conference. Committee on Rules of Practice and Procedure. Agenda E-18 Rules September 2005.)

As these rulings take effect, corporations will become susceptible to broader e-discovery requests ' and susceptible and subject to more of them. As companies respond to these requests, the companies' executives and counsel will awaken to the difficulties and costs of meeting the requests if they use existing access and search processes.

The Process Problem

As more e-discovery requests are granted in conjunction with new federal rulings during the initial data-acquisition phase, demands are placed on companies to which their manual or semi-automated e-discovery processes cannot readily adapt.

For instance, searches for information may need to occur that cross individual, department or business-unit boundaries. Crossing these lines may introduce any of a number of problems. Organizations may need to make technical or security-policy changes to the computing environment to facilitate these requests, such as installing new network connections or granting additional security privileges. Such searches and adjustments for them also may present a new set of corporate legal liabilities, if sensitive information is unnecessarily shared or exposed because of the imprecise nature of initial e-discovery requests.

Another set of potential problems that the data-acquisition phase introduces is the level of training and expertise the individuals who conduct the searches possess. Though IT staff, administrators or paralegals may know where the information resides, they might lack the background and training to perform the queries for the information. This creates two problems:

1. The queries they execute may have a negative impact on production applications or the computing environment as a whole.
2. Searches using the wrong words or phrases, executed against the wrong set of information or performed using the wrong commands, could produce invalid outcomes or, in worst-case scenarios, destroy the information that people conducting the searches were tasked to discover.

Then there's the hard-dollar and soft-dollar cost associated with acquiring and culling the data. Experts estimate that the costs to a small company ' with 1000 employees ' to perform a single e-discovery run to be from $50,000 to $70,000, using manual or semi-automated methods. In other situations, cases that start at an estimated $100,000 in legal fees can escalate to more than $5 million if an unfocused document collection returns more than one terabyte of information to review.

Yet organizations should expect the amount of electronic information that they need to manage to continue to increase. Industry and legal experts versed in the matter estimate that as high as 99% of all documents created now are in an electronic format, with much of this growth in electronic information occurring in the form of e-mails and files. These realities present certain technical problems at an enterprise level ” above and beyond the issues associated with accessing and searching.

e-Mail and Files

e-Mail e-discovery presents challenges to organizations on a number of fronts.

Journaling, the recording of all e-mail communications, is what most e-mail archiving technologies use to capture incoming and outgoing e-mails. However, implementing this technology does not solve two basic problems:

1. While it does solve the problem for organizations going forward, it does nothing to address the problem of e-mails already stored on local PCs and hard drives. These stored e-mails in pre-existing .PST and .OST files still require tools to access and search their contents.
2. Because of the overhead introduced by these journaling technologies on central e-mail servers, administrators set policies that archive only certain e-mails from specific users, or if the e-mail satisfies certain conditions. These policies, in turn, might allow pertinent e-mail messages to enter or leave the organization ' and that are never centrally archived.

File e-discovery presents an equally great barrier to discovering needed information. Individuals, departments and project teams can create and edit files, and then store them on different locations ' including file servers, and corporate desktop and laptop computers. This introduces a two-fold challenge when one must access and search information.

First, users may store data in more than 200 proprietary formats. While common document formats, like Microsoft Word (.doc), Microsoft Excel (.xls) and Adobe Acrobat files (.pdf), are generally easily accessed and searched, less-common file formats, such as WordPerfect or Lotus 1-2-3, still exist and may require organizations to acquire special tools to open and examine these files.

Second, with data stored on multiple different devices, searching each one of these devices becomes a laborious and imprecise process. Requiring IT staff, employees or paralegals to search hundreds of file servers, desktops and laptop systems in an organization using basic 'Find' commands can take hours, days or weeks.

These search techniques also require that users have the appropriate security clearances to access these files, and to know that certain directory or files exist. Also, users and administrators possessing the ability to password-protect files or parts of files (such as a range of cells in a spreadsheet), and change attributes on directories and files, can present other challenges. This situation often results in IT staff and paralegals lacking the ability to access the file because they don't know or can't get the file password.

An access and search problem common to e-mail and file e-discovery is lack of a central console and repository used to initiate and store the results of searches. Using current methods, IT staff, employees or paralegals must perform the same search on each e-mail archive and file server, and then save the search results. Then they must combine the results from all the searches in one common repository while keeping track of what file contained what data and where the file was located. Even once they gather all this data, the task of culling the information and keeping only the pertinent documents awaits.

Automating e-Discovery

In response to these time-consuming and error-prone methods that companies often employ for e-discovery, new solutions are needed to allow organizations to automate tasks associated with e-discovery. New e-discovery solutions deliver the following productivity gains to organizations while reducing costs and risks:

• Deploy with minimal disruption to the existing IT environment;
• Institute a repeatable and auditable process for document e-discovery;
• Automate the indexing of billions of files and e-mail messages;
• Support hundreds of different file formats;
• Provide a single view for files and e-mails for rapid search and discovery; and
• Allow organizations to respond more quickly to legal e-discovery requests.

One key to the successful introduction of any e-discovery solution is a simple and easy deployment. New e-discovery solutions integrate into existing file and e-mail infrastructures by using existing network protocols and taking advantage of existing security policies. By giving the e-discovery solution the appropriate security permissions, the solution may access and search all electronic documents within an organization. By also setting policies within the solution, administrators may further control how and when the solution accesses files and e-mails, and what types of searches it performs so that the appropriate data is retrieved without risking data loss.

The introduction of an e-discovery solution also allows organizations to institute repeatable and auditable processes for document e-discovery. Manual reviews make it hard to determine whether all searches are done in the same way, and it is equally difficult to redo the search if an error in the process is detected. With e-discovery solutions, administrators establish and set search criteria before the e-discovery begins so that auditors may review the criteria set. If it's determined that the criteria for some reason weren't properly defined or an organization needs to conduct additional searches, then administrators need only change the search
criteria and execute another search.

e-Discovery solutions also perform another vital function behind the scenes while they search electronic documents: They index these documents and their content. With the solutions capable of indexing billions of files and e-mail messages, the need for future document e-discoveries to touch every e-mail archive and file server can be kept to a minimum.

This allows future searches to occur using only the e-discovery solution database that allows organizations to identify which documents they need to retrieve, and the physical location where the e-mail message or file may be found. It also creates a central console for organizations and gives them a consolidated view of what documents they have in their enterprise, and where they are located. But the real value of this index is that it provides organizations with the ability to respond more quickly to future e-discovery requests, with the number of disruptions and the total costs reduced.

Benefits Realized

Some companies are already realizing the financial, process and technical benefits that automated e-discovery solutions provide. For example, one mid-sized semiconductor manufacturer with about 5000 employees anticipated receiving around 12 lawsuits in a year, with a mild increase in lawsuits in subsequent years. By implementing an e-discovery solution, the company expected to save about $3 million with a 3-year ROI of more than 350%.

In another case, a financial-services firm with about 50,000 employees experienced roughly 10 lawsuits a month and anticipated lawsuits growing at a steady rate over the next 3 years. The e-discovery solution needed to span about 1 billion files when responding to legal inquiries and performing legal discoveries, and had to satisfy the CFO's desire to lower discovery costs while minimizing headcount increases with storage growth. By implementing an e-discovery solution, the CFO expects to realize a net savings of about $25 million and an ROI of nearly 350%.

Organizations can expect to face growing numbers of legal inquiries as a result of the soon-to-arrive additions to the Federal Rules of Civil Procedure that will widen the scope of future legal inquiries. As these take effect, they will require the discovery of ever more information with decreasing amounts of time to produce it, bringing into focus the insufficiencies of current e-discovery approaches.

Responding to these inadequacies requires new e-discovery solutions designed to access, search, acquire and cull the data more quickly, and more cost-effectively, and to do it with minimal impact on business. Yet, with some corporations of varying sizes having already deployed and realized the technical, process-oriented and accompanying financial benefits that e-discovery solutions provide, the groundwork has been lain, allowing companies to move forward with reasonable assurance that they can deploy these technologies without putting either the integrity of their data or the safety of their business at risk.

A new day is dawning for electronic discovery in corporate environments. Opposing counsels recognize that e-documents stored in proprietary formats or on multiple systems no longer mean that they are inaccessible.

The proposed amendments to the Federal Rules of Civil Procedure, which have been covered extensively in e-Discovery Law & Strategy, expand the rules in regards to e-discovery. Scheduled to go into effect on December 1, unless Congress intervenes to change them, examples of previous types of rulings that the amended rules would broaden include:

• In Rule 26(a)(1), the phrase 'electronically stored information' is added. This could require either party to locate information germane to the case even though the nature of the information is imprecise;
• In Rule 34(a)(1), the phrase 'stored on any medium' is added. This wording is designed to be flexible enough to cover all current technologies and flexible enough to encompass future changes and developments; and
• Rule 37(f) is an entirely new subdivision of Rule 37 and provides provisions for information lost during routine, good-faith operations. (From, Summary of the Report of the Judicial Conference. Committee on Rules of Practice and Procedure. Agenda E-18 Rules September 2005.)

As these rulings take effect, corporations will become susceptible to broader e-discovery requests ' and susceptible and subject to more of them. As companies respond to these requests, the companies' executives and counsel will awaken to the difficulties and costs of meeting the requests if they use existing access and search processes.

The Process Problem

As more e-discovery requests are granted in conjunction with new federal rulings during the initial data-acquisition phase, demands are placed on companies to which their manual or semi-automated e-discovery processes cannot readily adapt.

For instance, searches for information may need to occur that cross individual, department or business-unit boundaries. Crossing these lines may introduce any of a number of problems. Organizations may need to make technical or security-policy changes to the computing environment to facilitate these requests, such as installing new network connections or granting additional security privileges. Such searches and adjustments for them also may present a new set of corporate legal liabilities, if sensitive information is unnecessarily shared or exposed because of the imprecise nature of initial e-discovery requests.

Another set of potential problems that the data-acquisition phase introduces is the level of training and expertise the individuals who conduct the searches possess. Though IT staff, administrators or paralegals may know where the information resides, they might lack the background and training to perform the queries for the information. This creates two problems:

1. The queries they execute may have a negative impact on production applications or the computing environment as a whole.
2. Searches using the wrong words or phrases, executed against the wrong set of information or performed using the wrong commands, could produce invalid outcomes or, in worst-case scenarios, destroy the information that people conducting the searches were tasked to discover.

Then there's the hard-dollar and soft-dollar cost associated with acquiring and culling the data. Experts estimate that the costs to a small company ' with 1000 employees ' to perform a single e-discovery run to be from $50,000 to $70,000, using manual or semi-automated methods. In other situations, cases that start at an estimated $100,000 in legal fees can escalate to more than $5 million if an unfocused document collection returns more than one terabyte of information to review.

Yet organizations should expect the amount of electronic information that they need to manage to continue to increase. Industry and legal experts versed in the matter estimate that as high as 99% of all documents created now are in an electronic format, with much of this growth in electronic information occurring in the form of e-mails and files. These realities present certain technical problems at an enterprise level ” above and beyond the issues associated with accessing and searching.

e-Mail and Files

e-Mail e-discovery presents challenges to organizations on a number of fronts.

Journaling, the recording of all e-mail communications, is what most e-mail archiving technologies use to capture incoming and outgoing e-mails. However, implementing this technology does not solve two basic problems:

1. While it does solve the problem for organizations going forward, it does nothing to address the problem of e-mails already stored on local PCs and hard drives. These stored e-mails in pre-existing .PST and .OST files still require tools to access and search their contents.
2. Because of the overhead introduced by these journaling technologies on central e-mail servers, administrators set policies that archive only certain e-mails from specific users, or if the e-mail satisfies certain conditions. These policies, in turn, might allow pertinent e-mail messages to enter or leave the organization ' and that are never centrally archived.

File e-discovery presents an equally great barrier to discovering needed information. Individuals, departments and project teams can create and edit files, and then store them on different locations ' including file servers, and corporate desktop and laptop computers. This introduces a two-fold challenge when one must access and search information.

First, users may store data in more than 200 proprietary formats. While common document formats, like Microsoft Word (.doc), Microsoft Excel (.xls) and Adobe Acrobat files (.pdf), are generally easily accessed and searched, less-common file formats, such as WordPerfect or Lotus 1-2-3, still exist and may require organizations to acquire special tools to open and examine these files.

Second, with data stored on multiple different devices, searching each one of these devices becomes a laborious and imprecise process. Requiring IT staff, employees or paralegals to search hundreds of file servers, desktops and laptop systems in an organization using basic 'Find' commands can take hours, days or weeks.

These search techniques also require that users have the appropriate security clearances to access these files, and to know that certain directory or files exist. Also, users and administrators possessing the ability to password-protect files or parts of files (such as a range of cells in a spreadsheet), and change attributes on directories and files, can present other challenges. This situation often results in IT staff and paralegals lacking the ability to access the file because they don't know or can't get the file password.

An access and search problem common to e-mail and file e-discovery is lack of a central console and repository used to initiate and store the results of searches. Using current methods, IT staff, employees or paralegals must perform the same search on each e-mail archive and file server, and then save the search results. Then they must combine the results from all the searches in one common repository while keeping track of what file contained what data and where the file was located. Even once they gather all this data, the task of culling the information and keeping only the pertinent documents awaits.

Automating e-Discovery

In response to these time-consuming and error-prone methods that companies often employ for e-discovery, new solutions are needed to allow organizations to automate tasks associated with e-discovery. New e-discovery solutions deliver the following productivity gains to organizations while reducing costs and risks:

• Deploy with minimal disruption to the existing IT environment;
• Institute a repeatable and auditable process for document e-discovery;
• Automate the indexing of billions of files and e-mail messages;
• Support hundreds of different file formats;
• Provide a single view for files and e-mails for rapid search and discovery; and
• Allow organizations to respond more quickly to legal e-discovery requests.

One key to the successful introduction of any e-discovery solution is a simple and easy deployment. New e-discovery solutions integrate into existing file and e-mail infrastructures by using existing network protocols and taking advantage of existing security policies. By giving the e-discovery solution the appropriate security permissions, the solution may access and search all electronic documents within an organization. By also setting policies within the solution, administrators may further control how and when the solution accesses files and e-mails, and what types of searches it performs so that the appropriate data is retrieved without risking data loss.

The introduction of an e-discovery solution also allows organizations to institute repeatable and auditable processes for document e-discovery. Manual reviews make it hard to determine whether all searches are done in the same way, and it is equally difficult to redo the search if an error in the process is detected. With e-discovery solutions, administrators establish and set search criteria before the e-discovery begins so that auditors may review the criteria set. If it's determined that the criteria for some reason weren't properly defined or an organization needs to conduct additional searches, then administrators need only change the search
criteria and execute another search.

e-Discovery solutions also perform another vital function behind the scenes while they search electronic documents: They index these documents and their content. With the solutions capable of indexing billions of files and e-mail messages, the need for future document e-discoveries to touch every e-mail archive and file server can be kept to a minimum.

This allows future searches to occur using only the e-discovery solution database that allows organizations to identify which documents they need to retrieve, and the physical location where the e-mail message or file may be found. It also creates a central console for organizations and gives them a consolidated view of what documents they have in their enterprise, and where they are located. But the real value of this index is that it provides organizations with the ability to respond more quickly to future e-discovery requests, with the number of disruptions and the total costs reduced.

Benefits Realized

Some companies are already realizing the financial, process and technical benefits that automated e-discovery solutions provide. For example, one mid-sized semiconductor manufacturer with about 5000 employees anticipated receiving around 12 lawsuits in a year, with a mild increase in lawsuits in subsequent years. By implementing an e-discovery solution, the company expected to save about $3 million with a 3-year ROI of more than 350%.

In another case, a financial-services firm with about 50,000 employees experienced roughly 10 lawsuits a month and anticipated lawsuits growing at a steady rate over the next 3 years. The e-discovery solution needed to span about 1 billion files when responding to legal inquiries and performing legal discoveries, and had to satisfy the CFO's desire to lower discovery costs while minimizing headcount increases with storage growth. By implementing an e-discovery solution, the CFO expects to realize a net savings of about $25 million and an ROI of nearly 350%.

Organizations can expect to face growing numbers of legal inquiries as a result of the soon-to-arrive additions to the Federal Rules of Civil Procedure that will widen the scope of future legal inquiries. As these take effect, they will require the discovery of ever more information with decreasing amounts of time to produce it, bringing into focus the insufficiencies of current e-discovery approaches.

Responding to these inadequacies requires new e-discovery solutions designed to access, search, acquire and cull the data more quickly, and more cost-effectively, and to do it with minimal impact on business. Yet, with some corporations of varying sizes having already deployed and realized the technical, process-oriented and accompanying financial benefits that e-discovery solutions provide, the groundwork has been lain, allowing companies to move forward with reasonable assurance that they can deploy these technologies without putting either the integrity of their data or the safety of their business at risk.