Document Discovery

In today's litigation world, corporate counsel struggle to contain the ever-increasing costs of document discovery. The explosion of electronically stored information ('ESI') is often a huge contributor to the expense of discovery. Consultants, vendors, and e-discovery software can help bring greater efficiencies and cost-savings to the process. But while there is a dizzying array of options available, they are not all created equal. Finding the right solution requires that you do your homework.

Before deciding to outsource your next electronic discovery request, take a moment to examine the review practices of your legal service provider or outside counsel. Many legal service providers and law firms are relying on outdated and expensive methods to collect and analyze data for litigation. For example, be wary of solutions that involve conversion of documents into TIFF or PDF format before an initial review for relevance of the underlying data takes place. This practice needlessly creates additional electronic 'copies' of vast amounts of data, most of which ultimately prove to be irrelevant and thus are never produced or otherwise used. It may also undermine your ability to take advantage of certain useful characteristics of native format documents that are lost in the conversion process. A step as simple as using e-discovery software that facilitates processing and review of electronic documents in their native format can save your company a great deal of money when it comes to document discovery.

The Benefits of Native Format Review

There are distinct advantages to handling electronic information in its native format ' i.e., the format in which it was originally created ' particularly during the early stages of the discovery process. The benefits of reviewing documents in their native format as part of an overall e-discovery solution include:

Cost savings: The pre-review conversion of native electronic data to TIFF or PDF format can cost from 5 cents to 20 cents a page. In other words, converting a million pages of documents simply to include them in a database for review can cost between $50,000 and $200,000. Because this expense is incurred up front, every single page that counsel subsequently determines is not relevant for the company's response to discovery requests represents money wasted.

Speed: Converting ESI into TIFF or PDF format at the onset of discovery is often untenable. Not only can the sheer volume of data present a significant challenge, but it is often difficult and time-consuming to accurately and completely convert certain types of electronic data (e.g., spreadsheets), to TIFF or PDF images. The delays that result are unacceptable in the current legal environment, where parties must often respond quickly to litigation or investigative demands.

Reduced volumes of data: By maintaining documents in their native format during initial processing and review, a party can take advantage of e-discovery software that reduces the volume of data before review even begins ' a result that is accomplished by suppressing duplicate documents through a process commonly known as 'de-duplication.' For example, at our firm, we use e-discovery software that can analyze a series of e-mail strings and identify the last, most complete version of the string. By presenting only this 'master thread' for review, and suppressing all shorter, 'lesser-included' versions, the tool spares us from repeatedly encountering and being forced to review every occurrence of a shorter email thread that is already part of the 'master thread.' Consequently, de-duplication alone has reduced the overall volume of files we review in a typical case by 22%, of which 8% to 11% is attributable to the suppression of 'lesser-included' duplicates.

Audit trails: Another important feature to look for in e-discovery software that allows review of documents in their native format is the ability of the software to do so: 1) without altering the data being reviewed; and 2) while creating an audit trail that tracks every action taken with each document. This is especially important when dealing with ESI, where spoliation and document alteration are common concerns, and a greater focus may be placed on the integrity of a litigant's discovery processes.

Improved flexibility and speed of attorney review: e-discovery software should be able to take advantage of the metadata contained within native documents to provide the most efficient, flexible, user-friendly interface possible. For example, the software used by our firm was designed with review in mind. It provides a graphic user interface that allows electronic documents to be searched and organized in a variety of ways, depending on the particular project and/or the needs and preferences of the attorney reviewing the documents. The reviewing attorney can segregate documents by their date or by who sent or received them, or can view the documents 'mapped' against each other, or sorted into folders, based on common content. The ability to segregate documents that are search hits, and to then view those documents with the search hits highlighted within the body of the document, is an additional feature that the attorney can use to review documents more quickly and efficiently.

Increased return on your investment: The best e-discovery software will also provide the attorney with a variety of options for electronically marking and annotating responsive documents, e.g., 'responsive,' 'hot,' 'privileged' ' so that as soon as the attorney makes a decision about a document, that decision can be recorded. Companies that often use the same data in different matters should choose e-discovery software that allows them to maintain markings and annotations made in one case for future use in other cases. This capability can result in considerable savings over time, by allowing the company to take full advantage of efforts already expended, rather than starting from scratch each time the same data needs to be considered for discovery in a new action.

Pre-litigation use ' 'snapshot' reviews: Native file document review technology that combines powerful searching and de-duplication capabilities with a well designed user interface may give a party a valuable head start on analyzing and preparing their case by enabling them to conduct a 'snapshot' review to quickly locate crucial information. A snapshot review can be utilized either pre-litigation or soon after a case has been commenced to conduct a fast, focused search and review of ESI maintained by key players who are central to the facts, claims and defenses in the case. While not as expansive as the review that may ultimately be required in order to respond to formal discovery requests, the snapshot review allows the legal team to assess risk and diagnose vulnerability early in a case, which in turn may affect litigation and/or settlement strategy.

Native File Format And the Federal Rules of Civil Procedure

With much fanfare, changes were made to the Federal Rules of Civil Procedure ('FRCP') on Dec. 1, 2006. Two changes of particular interest touch directly on the format of production. Rule 26(f) connects ESI to the meet-and-confer process, and specifically instructs that parties should develop a proposed discovery plan that addresses issues relating to the disclosure or discovery of ESI, 'including the form or forms in which it should be produced.' Rule 34(b) provides additional guidance with regard to the form of production, specifying the procedures for determining the form in which ESI will be produced.

The flexibility and efficiency offered by native file review puts parties in the best position to fulfill such discovery obligations. Parties can forge ahead to make progress in meeting their discovery deadlines without delay, because substantive review can proceed even while the parties continue to iron out details regarding the form or forms in which the documents will be produced. And because no conversion has taken place, the producing party has not compromised its ability to produce the information in whatever format the parties ultimately agree upon.

The Bottom Line

The value of e-discovery platforms that facilitate the processing and review of documents in their native file format review is firmly established. Properly implemented, native format processing and review increase the efficiency and speed of review, while reducing both cost and risk. Using or investing in a software solution that doesn't allow for native format functionality may well compromise the ability to comply with discovery obligations in a timely fashion, while at the same time costing significantly more money. Companies should carefully evaluate their e-discovery options and seek out service providers and law firms that leverage native file format review within an e-discovery platform for greater efficiencies and cost savings.

James D. Sherman (jim.sherman@ klgates.com) is a partner in the law firm of K&L Gates, practicing in its Seattle office. His practice is focused on the firm's Document Analysis Technology Group and Records Management Practice, which is dedicated to pioneering and expanding effective and cost-efficient electronic discovery technologies and processes. He is a frequent speaker and presenter on electronic discovery issues. Lori Steidl ([email protected]) is a staff attorney with the firm's Document Analysis Technology Group and Records Management Practice.

In today's litigation world, corporate counsel struggle to contain the ever-increasing costs of document discovery. The explosion of electronically stored information ('ESI') is often a huge contributor to the expense of discovery. Consultants, vendors, and e-discovery software can help bring greater efficiencies and cost-savings to the process. But while there is a dizzying array of options available, they are not all created equal. Finding the right solution requires that you do your homework.

Before deciding to outsource your next electronic discovery request, take a moment to examine the review practices of your legal service provider or outside counsel. Many legal service providers and law firms are relying on outdated and expensive methods to collect and analyze data for litigation. For example, be wary of solutions that involve conversion of documents into TIFF or PDF format before an initial review for relevance of the underlying data takes place. This practice needlessly creates additional electronic 'copies' of vast amounts of data, most of which ultimately prove to be irrelevant and thus are never produced or otherwise used. It may also undermine your ability to take advantage of certain useful characteristics of native format documents that are lost in the conversion process. A step as simple as using e-discovery software that facilitates processing and review of electronic documents in their native format can save your company a great deal of money when it comes to document discovery.

The Benefits of Native Format Review

There are distinct advantages to handling electronic information in its native format ' i.e., the format in which it was originally created ' particularly during the early stages of the discovery process. The benefits of reviewing documents in their native format as part of an overall e-discovery solution include:

Cost savings: The pre-review conversion of native electronic data to TIFF or PDF format can cost from 5 cents to 20 cents a page. In other words, converting a million pages of documents simply to include them in a database for review can cost between $50,000 and $200,000. Because this expense is incurred up front, every single page that counsel subsequently determines is not relevant for the company's response to discovery requests represents money wasted.

Speed: Converting ESI into TIFF or PDF format at the onset of discovery is often untenable. Not only can the sheer volume of data present a significant challenge, but it is often difficult and time-consuming to accurately and completely convert certain types of electronic data (e.g., spreadsheets), to TIFF or PDF images. The delays that result are unacceptable in the current legal environment, where parties must often respond quickly to litigation or investigative demands.

Reduced volumes of data: By maintaining documents in their native format during initial processing and review, a party can take advantage of e-discovery software that reduces the volume of data before review even begins ' a result that is accomplished by suppressing duplicate documents through a process commonly known as 'de-duplication.' For example, at our firm, we use e-discovery software that can analyze a series of e-mail strings and identify the last, most complete version of the string. By presenting only this 'master thread' for review, and suppressing all shorter, 'lesser-included' versions, the tool spares us from repeatedly encountering and being forced to review every occurrence of a shorter email thread that is already part of the 'master thread.' Consequently, de-duplication alone has reduced the overall volume of files we review in a typical case by 22%, of which 8% to 11% is attributable to the suppression of 'lesser-included' duplicates.

Audit trails: Another important feature to look for in e-discovery software that allows review of documents in their native format is the ability of the software to do so: 1) without altering the data being reviewed; and 2) while creating an audit trail that tracks every action taken with each document. This is especially important when dealing with ESI, where spoliation and document alteration are common concerns, and a greater focus may be placed on the integrity of a litigant's discovery processes.

Improved flexibility and speed of attorney review: e-discovery software should be able to take advantage of the metadata contained within native documents to provide the most efficient, flexible, user-friendly interface possible. For example, the software used by our firm was designed with review in mind. It provides a graphic user interface that allows electronic documents to be searched and organized in a variety of ways, depending on the particular project and/or the needs and preferences of the attorney reviewing the documents. The reviewing attorney can segregate documents by their date or by who sent or received them, or can view the documents 'mapped' against each other, or sorted into folders, based on common content. The ability to segregate documents that are search hits, and to then view those documents with the search hits highlighted within the body of the document, is an additional feature that the attorney can use to review documents more quickly and efficiently.

Increased return on your investment: The best e-discovery software will also provide the attorney with a variety of options for electronically marking and annotating responsive documents, e.g., 'responsive,' 'hot,' 'privileged' ' so that as soon as the attorney makes a decision about a document, that decision can be recorded. Companies that often use the same data in different matters should choose e-discovery software that allows them to maintain markings and annotations made in one case for future use in other cases. This capability can result in considerable savings over time, by allowing the company to take full advantage of efforts already expended, rather than starting from scratch each time the same data needs to be considered for discovery in a new action.

Pre-litigation use ' 'snapshot' reviews: Native file document review technology that combines powerful searching and de-duplication capabilities with a well designed user interface may give a party a valuable head start on analyzing and preparing their case by enabling them to conduct a 'snapshot' review to quickly locate crucial information. A snapshot review can be utilized either pre-litigation or soon after a case has been commenced to conduct a fast, focused search and review of ESI maintained by key players who are central to the facts, claims and defenses in the case. While not as expansive as the review that may ultimately be required in order to respond to formal discovery requests, the snapshot review allows the legal team to assess risk and diagnose vulnerability early in a case, which in turn may affect litigation and/or settlement strategy.

Native File Format And the Federal Rules of Civil Procedure

With much fanfare, changes were made to the Federal Rules of Civil Procedure ('FRCP') on Dec. 1, 2006. Two changes of particular interest touch directly on the format of production. Rule 26(f) connects ESI to the meet-and-confer process, and specifically instructs that parties should develop a proposed discovery plan that addresses issues relating to the disclosure or discovery of ESI, 'including the form or forms in which it should be produced.' Rule 34(b) provides additional guidance with regard to the form of production, specifying the procedures for determining the form in which ESI will be produced.

The flexibility and efficiency offered by native file review puts parties in the best position to fulfill such discovery obligations. Parties can forge ahead to make progress in meeting their discovery deadlines without delay, because substantive review can proceed even while the parties continue to iron out details regarding the form or forms in which the documents will be produced. And because no conversion has taken place, the producing party has not compromised its ability to produce the information in whatever format the parties ultimately agree upon.

The Bottom Line

The value of e-discovery platforms that facilitate the processing and review of documents in their native file format review is firmly established. Properly implemented, native format processing and review increase the efficiency and speed of review, while reducing both cost and risk. Using or investing in a software solution that doesn't allow for native format functionality may well compromise the ability to comply with discovery obligations in a timely fashion, while at the same time costing significantly more money. Companies should carefully evaluate their e-discovery options and seek out service providers and law firms that leverage native file format review within an e-discovery platform for greater efficiencies and cost savings.

James D. Sherman (jim.sherman@ klgates.com) is a partner in the law firm of K&L Gates, practicing in its Seattle office. His practice is focused on the firm's Document Analysis Technology Group and Records Management Practice, which is dedicated to pioneering and expanding effective and cost-efficient electronic discovery technologies and processes. He is a frequent speaker and presenter on electronic discovery issues. Lori Steidl ([email protected]) is a staff attorney with the firm's Document Analysis Technology Group and Records Management Practice.