Is an Integrated e-Discovery Solution the Best Approach?

The e-discovery market is changing at an ever-increasing rate. Almost daily, we hear news of a merger between two vendors with talk of providing an integrated solution for law firms. Indeed, integration has quickly become one of the buzzwords of 2010.

With law firms increasingly feeling pressure to adapt to client demands to reduce bills and expenses, an integrated e-discovery solution may seem like a wise investment. Having fewer vendors providing necessary services is always beneficial. It means less administrative overhead, less potential for miscommunication, and less time spent training staff on new software. However, when it comes to e-discovery, an integrated solution may not always provide a law firm with exactly what it needs. An integrated e-discovery platform must provide the firm with the ability to process, review, analyze and then produce electronically stored information (“ESI”) in a consistent, defensible and economically sensible manner. This is of paramount importance. Without understanding the many nuances involved in each of these phases, a law firm may quickly find out that it has purchased an integrated solution that fails to perform an essential task. At that point, the firm is faced with outsourcing this essential task or purchasing standalone software, defeating the purpose of investing in an integrated solution. In light of this, firms should carefully consider the essential software components for each phase of the e-discovery life cycle before investing in an integrated solution.

Essential Components for ESI Processing

Processing ESI is one of the biggest hurdles for any e-discovery solution. Data comes in many forms and formats, and often requires many steps in order to be made ready for analysis. Removing duplicate copies, especially of e-mails, is also crucial. An integrated tool must address all of these issues.

When it comes to the processing phase, law firms should consider whether an integrated solution provides the following:

• Identification of File Types. Obviously, the most basic function of a processing application should be to identify files by file type, and truthfully, most solutions readily perform some level of file type identification. However, file extensions can often be misleading. A better tool can process files by analyzing their contents, not simply their extensions.
• Unpack Container Files. ESI almost always includes .zip files and other container files. Technically speaking, e-mail is also packaged in a container file ' a .pst file. Thus, at a minimum, a processing tool should be able to unpack and extract the packaged files, including e-mail attachments.
• De-nisting Capabilities. De-nisting is a term for removing certain known file types that are considered non-relevant from a collection. Most often, these are system files from the originating computer and have no significance to the ESI. De-nisting a collection set can substantially reduce the number of documents that will need to be reviewed, saving time and money.
• De-duplication. De-duplication is an increasingly popular buzzword in e-discovery. In the past few years, new tools have come to market for suppressing duplicates of e-mails, files, and even instant messages, as well as other forms of communication. At a minimum, however, standard de-duplication ' that is, suppression and segregation of e-mails by custodian and across a project ' should be considered, as it can greatly reduce the total number of documents for review.
• Image Conversion. Another topic generating buzz in the industry is the use of native files for review, as opposed to a law firm's ingrained practice of first converting the native file to an image format. This certainly makes sense from a cost standpoint, and it is entirely likely that with advances in technology, we will begin to see more native file reviews. However, many lawyers still take comfort in a Bates-stamped image file ' one they can print and hold in their hand. This practice will not likely die out anytime soon. Because of this, an integrated tool should convert ESI into a fixed image format.
• OCR. The old saying “ garbage in, garbage out” applies broadly to the e-discovery lifecycle. A review and analysis ' especially the use of keyword searching ' is only as good as the data one can apply terms against. The industry as a whole has not yet moved past the use of documents that may have been produced in previous litigation as non-searchable image files. Moreover, certain .pdf files may be non-searchable by default. In order to increase the viability of the review process, these types of documents must be OCR'ed in order to extract the text. An integrated tool that does not offer batch OCR capabilities should be viewed with caution, unless the law firm has deemed this function unnecessary.
• Generate Load Files. Review applications use load files to understand the correlation between the processed files or images, the associated extracted text, and any work product that is applied to the corresponding ESI. Think of a load file as the central nervous system ' it tells all the moving parts how they function together. The ability of a processing solution to generate load files for the most common platforms on the market today is essential. In an integrated solution, the processing portion would ideally create a load file for the integrated review function. However, it should also be able to create other load file types for production purposes.

All of the above are features that law firms should expect to come standard in an integrated processing solution, but that might not be the position of the vendor. Law firms should diligently review the specifications of any integrated solution they are considering to ensure all required features are indeed part of the platform.

Essential Components for ESI Analysis

In recent years, many companies have developed advanced tools that supplanted the need to perform a traditional linear review of ESI and thereby substantially decreased the time and cost associated with this phase. Analytical tools have been developed that provide the ability to quickly assess and display intelligence about the data set as well as individual documents within it. And tools are constantly being created and developed to extract as much intelligence about the data set as possible. Yet, certain review and analytical tools can be viewed as essential, especially when a law firm is considering investing in an integrated solution.

A law firm should consider whether an integrated solution provides the following features for the review and analytics phase of the e-discovery lifecycle:

• Conceptual Review. Though some might consider conceptual review as a luxury, the increasing volume of ESI that law firms confront makes this a mandatory feature of an integrated solution.
• Conditional Coding. Often during the privilege review process, documents identified as privileged are not withheld and end up coded for production. The common culprit in this situation is generally the tagging or coding structure. Conditional coding solves this problem by allowing the administrator to enforce certain tagging rules. Thus, if a reviewer tags a document as privileged, it cannot also be tagged for production. Conditional or forced coding should be considered as part of any integrated solution.
• Dynamic Folder Creation. A review tool is only as good as the organization imposed upon it, and the ability to segregate and identify ESI by groupings based on rules, similarity or other information gleaned from the document is vital to ensuring the efficiency and effectiveness of the review.
• Review and Redact Native Files. This tool decreases costs not only by foregoing the need for converting ESI to image format for review, but also by eliminating the need to invest in the underlying software for each native file in order to view it. However, a native file review capability, without being able to redact those same documents, is useless and an integrated solution should provide both capabilities. With reviews increasingly moving into this standard and the investment required for an integrated solution, ensuring this capability is paramount.
• Administrator Management. Increasingly, litigation support departments are utilizing project management tools and practices to bring increased efficiency to the review phase. An integrated solution should enable administrators to assign and delegate tasks, track review progress, provide oversight to the quality control process and automate the review workflow. The ability to manage the review from within the application is critical as it adds a further layer of risk mitigation to the process, while also substantially increasing the efficiency of the overall process. For a firm with disparate office locations, this is particularly beneficial, as it can allow for increased collaboration among those locations.
• Fuzzy Logic Search. As mentioned above, search tools are only as good as the data they search against. Often in the case of OCR'ed documents, employing search methodologies can be under-inclusive due to various factors. Most common among those is simply that the OCR was not a completely accurate representation of the text of the document. Fuzzy logic searching can compensate for this ' and misspellings in e-mails ' by expanding the permissible results a search may yield.
• Social Network Analysis. Social network analysis is concerned with identifying and visually depicting the relationships between custodians by analyzing their communications, usually e-mail. There are numerous benefits to this type of analysis. First, it allows the reviewer to narrow the scope of review to essential communications and increases the contextual information from those communications. Second, by visually mapping these relationships, review teams may be able to identify custodians not originally deemed relevant to the matter. Social network analysis will only increase in relevancy as e-mail volumes increase, and for law firms that deal with matters involving corporate clients with numerous custodians, this analysis can provide invaluable intelligence.

Essential Components for Production

Some of the concepts above, such as the conversion of native files to images, redaction capabilities and OCR, are equally crucial for the production phase. Along with those features, a law firm considering an integrated solution should weigh the following:

• Automated Electronic File Numbering. As native file productions gain in popularity due to the cost savings associated with them, law firms will need tools that can electronically number or “Bates” the ESI. The ability to assign an electronically affixed, unique identifying number to each document is vital.
• Automated Electronic Image Numbering. Unless and until a law firm invests in a solution that can redact native files, conversion to an image file is necessary for production, to the extent redactions are needed.
• Multi-party Production Tracking. An integrated solution must have the ability to track, coordinate and easily replicate multiple or overlapping productions to various parties. This capability can drastically reduce the amount of time necessary to replicate a production to a subsequent party in a proceeding. It can also assist the firm with maintaining organization in complex matters.
• Automated Exception Processing. With any production, there are always exception files that require special attention, and exception reporting should not be overlooked. This functionality can drastically reduce the amount of time and money spent on productions.
• Repopulation of De-duplicated ESI. In certain situations, adding duplicative documents back into the final production may be necessary. In other instances, it may only be necessary to identify whether a particular custodian received an e-mail, for example. The ability to repopulate duplicate documents ' or, at the very least, to identify them ' is essential.

Conclusion

As e-discovery vendors continue to merge in order to compete with the new entrants to the market and provide new and better solutions to law firms, the industry will see increased use of the concept of integration as a marketing and sales tool. With respect to the phases of the e-discovery lifecycle, a law firm's investment can be significant. Ideally, such an investment should account for prospective changes in technology and their implications. Therefore, while some of these features may see like costly luxuries, they will become standard in a few short years.

The e-discovery market is changing at an ever-increasing rate. Almost daily, we hear news of a merger between two vendors with talk of providing an integrated solution for law firms. Indeed, integration has quickly become one of the buzzwords of 2010.

With law firms increasingly feeling pressure to adapt to client demands to reduce bills and expenses, an integrated e-discovery solution may seem like a wise investment. Having fewer vendors providing necessary services is always beneficial. It means less administrative overhead, less potential for miscommunication, and less time spent training staff on new software. However, when it comes to e-discovery, an integrated solution may not always provide a law firm with exactly what it needs. An integrated e-discovery platform must provide the firm with the ability to process, review, analyze and then produce electronically stored information (“ESI”) in a consistent, defensible and economically sensible manner. This is of paramount importance. Without understanding the many nuances involved in each of these phases, a law firm may quickly find out that it has purchased an integrated solution that fails to perform an essential task. At that point, the firm is faced with outsourcing this essential task or purchasing standalone software, defeating the purpose of investing in an integrated solution. In light of this, firms should carefully consider the essential software components for each phase of the e-discovery life cycle before investing in an integrated solution.

Essential Components for ESI Processing

Processing ESI is one of the biggest hurdles for any e-discovery solution. Data comes in many forms and formats, and often requires many steps in order to be made ready for analysis. Removing duplicate copies, especially of e-mails, is also crucial. An integrated tool must address all of these issues.

When it comes to the processing phase, law firms should consider whether an integrated solution provides the following:

• Identification of File Types. Obviously, the most basic function of a processing application should be to identify files by file type, and truthfully, most solutions readily perform some level of file type identification. However, file extensions can often be misleading. A better tool can process files by analyzing their contents, not simply their extensions.
• Unpack Container Files. ESI almost always includes .zip files and other container files. Technically speaking, e-mail is also packaged in a container file ' a .pst file. Thus, at a minimum, a processing tool should be able to unpack and extract the packaged files, including e-mail attachments.
• De-nisting Capabilities. De-nisting is a term for removing certain known file types that are considered non-relevant from a collection. Most often, these are system files from the originating computer and have no significance to the ESI. De-nisting a collection set can substantially reduce the number of documents that will need to be reviewed, saving time and money.
• De-duplication. De-duplication is an increasingly popular buzzword in e-discovery. In the past few years, new tools have come to market for suppressing duplicates of e-mails, files, and even instant messages, as well as other forms of communication. At a minimum, however, standard de-duplication ' that is, suppression and segregation of e-mails by custodian and across a project ' should be considered, as it can greatly reduce the total number of documents for review.
• Image Conversion. Another topic generating buzz in the industry is the use of native files for review, as opposed to a law firm's ingrained practice of first converting the native file to an image format. This certainly makes sense from a cost standpoint, and it is entirely likely that with advances in technology, we will begin to see more native file reviews. However, many lawyers still take comfort in a Bates-stamped image file ' one they can print and hold in their hand. This practice will not likely die out anytime soon. Because of this, an integrated tool should convert ESI into a fixed image format.
• OCR. The old saying “ garbage in, garbage out” applies broadly to the e-discovery lifecycle. A review and analysis ' especially the use of keyword searching ' is only as good as the data one can apply terms against. The industry as a whole has not yet moved past the use of documents that may have been produced in previous litigation as non-searchable image files. Moreover, certain .pdf files may be non-searchable by default. In order to increase the viability of the review process, these types of documents must be OCR'ed in order to extract the text. An integrated tool that does not offer batch OCR capabilities should be viewed with caution, unless the law firm has deemed this function unnecessary.
• Generate Load Files. Review applications use load files to understand the correlation between the processed files or images, the associated extracted text, and any work product that is applied to the corresponding ESI. Think of a load file as the central nervous system ' it tells all the moving parts how they function together. The ability of a processing solution to generate load files for the most common platforms on the market today is essential. In an integrated solution, the processing portion would ideally create a load file for the integrated review function. However, it should also be able to create other load file types for production purposes.

All of the above are features that law firms should expect to come standard in an integrated processing solution, but that might not be the position of the vendor. Law firms should diligently review the specifications of any integrated solution they are considering to ensure all required features are indeed part of the platform.

Essential Components for ESI Analysis

In recent years, many companies have developed advanced tools that supplanted the need to perform a traditional linear review of ESI and thereby substantially decreased the time and cost associated with this phase. Analytical tools have been developed that provide the ability to quickly assess and display intelligence about the data set as well as individual documents within it. And tools are constantly being created and developed to extract as much intelligence about the data set as possible. Yet, certain review and analytical tools can be viewed as essential, especially when a law firm is considering investing in an integrated solution.

A law firm should consider whether an integrated solution provides the following features for the review and analytics phase of the e-discovery lifecycle:

• Conceptual Review. Though some might consider conceptual review as a luxury, the increasing volume of ESI that law firms confront makes this a mandatory feature of an integrated solution.
• Conditional Coding. Often during the privilege review process, documents identified as privileged are not withheld and end up coded for production. The common culprit in this situation is generally the tagging or coding structure. Conditional coding solves this problem by allowing the administrator to enforce certain tagging rules. Thus, if a reviewer tags a document as privileged, it cannot also be tagged for production. Conditional or forced coding should be considered as part of any integrated solution.
• Dynamic Folder Creation. A review tool is only as good as the organization imposed upon it, and the ability to segregate and identify ESI by groupings based on rules, similarity or other information gleaned from the document is vital to ensuring the efficiency and effectiveness of the review.
• Review and Redact Native Files. This tool decreases costs not only by foregoing the need for converting ESI to image format for review, but also by eliminating the need to invest in the underlying software for each native file in order to view it. However, a native file review capability, without being able to redact those same documents, is useless and an integrated solution should provide both capabilities. With reviews increasingly moving into this standard and the investment required for an integrated solution, ensuring this capability is paramount.
• Administrator Management. Increasingly, litigation support departments are utilizing project management tools and practices to bring increased efficiency to the review phase. An integrated solution should enable administrators to assign and delegate tasks, track review progress, provide oversight to the quality control process and automate the review workflow. The ability to manage the review from within the application is critical as it adds a further layer of risk mitigation to the process, while also substantially increasing the efficiency of the overall process. For a firm with disparate office locations, this is particularly beneficial, as it can allow for increased collaboration among those locations.
• Fuzzy Logic Search. As mentioned above, search tools are only as good as the data they search against. Often in the case of OCR'ed documents, employing search methodologies can be under-inclusive due to various factors. Most common among those is simply that the OCR was not a completely accurate representation of the text of the document. Fuzzy logic searching can compensate for this ' and misspellings in e-mails ' by expanding the permissible results a search may yield.
• Social Network Analysis. Social network analysis is concerned with identifying and visually depicting the relationships between custodians by analyzing their communications, usually e-mail. There are numerous benefits to this type of analysis. First, it allows the reviewer to narrow the scope of review to essential communications and increases the contextual information from those communications. Second, by visually mapping these relationships, review teams may be able to identify custodians not originally deemed relevant to the matter. Social network analysis will only increase in relevancy as e-mail volumes increase, and for law firms that deal with matters involving corporate clients with numerous custodians, this analysis can provide invaluable intelligence.

Essential Components for Production

Some of the concepts above, such as the conversion of native files to images, redaction capabilities and OCR, are equally crucial for the production phase. Along with those features, a law firm considering an integrated solution should weigh the following:

• Automated Electronic File Numbering. As native file productions gain in popularity due to the cost savings associated with them, law firms will need tools that can electronically number or “Bates” the ESI. The ability to assign an electronically affixed, unique identifying number to each document is vital.
• Automated Electronic Image Numbering. Unless and until a law firm invests in a solution that can redact native files, conversion to an image file is necessary for production, to the extent redactions are needed.
• Multi-party Production Tracking. An integrated solution must have the ability to track, coordinate and easily replicate multiple or overlapping productions to various parties. This capability can drastically reduce the amount of time necessary to replicate a production to a subsequent party in a proceeding. It can also assist the firm with maintaining organization in complex matters.
• Automated Exception Processing. With any production, there are always exception files that require special attention, and exception reporting should not be overlooked. This functionality can drastically reduce the amount of time and money spent on productions.
• Repopulation of De-duplicated ESI. In certain situations, adding duplicative documents back into the final production may be necessary. In other instances, it may only be necessary to identify whether a particular custodian received an e-mail, for example. The ability to repopulate duplicate documents ' or, at the very least, to identify them ' is essential.

Conclusion

As e-discovery vendors continue to merge in order to compete with the new entrants to the market and provide new and better solutions to law firms, the industry will see increased use of the concept of integration as a marketing and sales tool. With respect to the phases of the e-discovery lifecycle, a law firm's investment can be significant. Ideally, such an investment should account for prospective changes in technology and their implications. Therefore, while some of these features may see like costly luxuries, they will become standard in a few short years.