Managing Electronic Discovery: How to Use This Powerful Tool Effectively by David S. Cochran Today, "electronic discovery" services are available to retrieve the material from the computers, convert the data to a manageable electronic format, extract the "metadata" from the electronic documents and then transfer the data to a repository for access by a legal team. This process maintains the chain of custody issues and is done for a fraction of the cost of the manual process. According to a recent study conducted by International Data Corp., there are more than 275 million e-mail addresses in the world. Currently, 93 percent of the world’s information is being generated and maintained in electronic format while only 7 percent is maintained in other media, such as paper or film. Furthermore, it also has been estimated that up to 30 percent of the typical documents generated by business today exist only in electronic format. With the mandatory disclosure requirement of the 1993 amendment to Federal Rule 26, the legal industry has come to the realization that any and all documents are fair game in the discovery process. Prior to this ruling, attorneys typically responded only to specific requests for documents. Now, to meet the obligation of this ruling, they must broaden the scope of their reviews to include any documents that are relevant to the matter. These documents may be paper, but they also may be e-mails and other electronic documents located on clients’ computer systems. The ruling is clear: Relevant electronic data must be produced. What Is the E-Discovery Process, and How Does a Lawyer Use It? What do lawyers do when production requests come in? What process do they follow? What are the technology options? These are good questions with many answers. Today, law firms, corporations and investment banks are taking a more global perspective on their document management needs. In the past, document management was delegated to the "back office" and was not used in the normal course of business. Today, however, document management and technology play a key role in the success of business transactions. Applying process and technology to the litigation process helps the lawyer better use and manage the information associated with the litigation. The following process flow identifies the steps and the associated types of information gathered during the litigation process: • A complaint is filed. • A document production request is prepared and submitted to the opposing counsel. Prior to the production, a review is made of the documents for relevancy, confidentiality, privilege, etc. Documents, both hard copy and electronic, are produced based on the terms of the document request. With advancements in technology, producing electronic "documents" (e-mail and their attachments, etc.) and images of hard-copy documents is standard form. There has been debate about the admissibility of these electronic documents in the past, but the Federal Rules of Evidence, Article X (Contents of Writings, Recordings and Photographs), Rule 101(1), define writings and recordings to include magnetic, mechanical or electronic recordings. Rule 101(3) states that if data are stored in a computer or similar device, then any printout or other output readable by sight, shown to reflect the data accurately, is an "original." Rule 101(4) states that a duplicate is "a counterpart produced by the same impression as the original . . .by mechanical or electronic re-recording. . .or by other equivalent techniques which accurately reproduce the original." And Rule 103 (Admissibility of Duplicates) states that a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it would be unfair to admit the duplicate in lieu of the original. This means that a photograph can be stored digitally in a computer, that a digital photograph stored in a computer is considered an original, and that any exact copy of the digital photograph is admissible as evidence. • Tracking the documents before they are produced is paramount to ensure efficiency and to provide key data throughout the remaining steps of the litigation process. What Are Factors to Consider During the E-Discovery Process? Each e-mail and its attachments are grouped together as a package. The metadata for the parent e-mail will reflect beginning and ending Bates ranges for any of its attachments. This is all standard processing. In addition to maintaining this information, metadata from e-mails, such as To, From, CC and BCC information, should be captured automatically. The subject and date sent and received, as well as the file path or folder structure for that e-mail and the PST it came from, also should be maintained. For electronic documents or non-e-mails, the file name, path information and date information should be captured. A case study example follows. A Corporation Involved in Litigation Requirement: Process electronic documents consisting of both e-mails and non-e-mails for three different cases. Two of the cases required Bates assignment by source or custodian, blowbacks and a file for loading the data into its on-site repository. The last case, consisting of the same document mix, neither required Bates assignment by source, nor did it require blowbacks. The deliverable in this instance was just the load file to its on-site repository. The repository also contained paper documents, and the introduction of the electronic documents to the system allowed them to search the entire spectrum of its document collection for relevance. Process: This data came in for the first two cases. There were about 1.75 million pages of data that were processed. Since the repository already housed paper documents and metadata, the fields that were automatically captured were mapped to the existing fields. The client also decided to add another case into the system. This case, as described above, had requirements different from the first two. In terms of the data mix across all three cases, e-mails came in as Microsoft Outlook, Lotus Notes and RTF files. The e-Capture process handled these various e-mails successfully, capturing all the necessary information. The non-e-mails consisted primarily of Microsoft Office products. Searching and Deduplication The process should allow for the filtering of data based on file types, or, in the case of e-mails, date sent. Since all documents should go through a 100 percent text extraction, searching documents based on complex search criteria is possible and should not be restricted in the number of search terms to use. This allows the lawyer to produce only those documents that match the specified criteria. E-mails can be deduped if the client requires this to be done. An e-mail is considered a duplicate if the date sent and the subject match. Additional fields can be added if the client desires. A case study example follows. A Law Firm Involved in Litigation Requirement: Provide blowbacks for specified custodians based on more than 100 search terms. Data were all electronic documents encompassing Microsoft Office products as well as other file types. Custodians were assigned a Bates prefix, and blowbacks were done for each custodian with the prefix and number sequence on them. Blowbacks were produced only for those custodians whose documents met the search criteria. Process: The initial shipment of electronic data consisted of a 35G hard drive with 100 custodians on it. Data from nine custodians totaling 500,000 pages were processed. During the processing, the client asked for certain file types to be filtered out. Production In terms of production, a system should allow for the assignment of Bates ranges by custodian, box or any other user-specified field. In addition, the ability to place endorsements and/or watermarks on the page should be permitted, as well as placing any combination of metadata on separator sheets. Producing files in their native application also should be possible. A case study example follows. A Law Firm and Corporation Involved in a Hart-Scott-Rodino Antitrust Improvements Act (HSR) Second Request Requirement: Process more than 400 custodians and 115GB of electronic data within a specified time frame of about eight weeks. Delivery was back to the client so it could do first review at the law firm prior to production. The first review was to be done electronically, and e-mails were to be deduped based on subject and date sent. Process: Data from the custodian list came in on a rolling basis. The data consisted of both Microsoft Outlook e-mails and other electronic documents. Documents for each custodian had to be designated into e-mail and non-e-mail groupings, so the client would know the contents prior to opening them. As e-mails were imported, they were compared with other e-mails already in the system. If duplicates, they were set aside and removed from the normal flow of the data. These batches of deduped documents were maintained in case the client decided that it wanted them. More than 6 million pages of electronic data were processed in about a six week time frame. Rolling deliveries of documents to be reviewed were provided to the client. As they were marked for responsiveness, the documents were sent back and the metadata updated for the actual production. During the latter stages of the process, the client decided that only 102 of the 400 plus custodians were required for production purposes. Finally, the ability to effectively manage electronic data in litigation is providing more capabilities for lawyers to consider. It is estimated that this market is growing at an 80 percent clip. The information discussed here will allow lawyers to develop a basic road map to better navigate the electronic discovery process. David S. Cochran is the vice president for the legal document management division of the Merrill Corp. and has been involved in the legal document management industry for 17 years.