For most of us, a few days away from the computer results in a few hours of sifting through email messages and other documents delivered during the offline period. Now imagine that you've been asked to sift through several years of email and other documents to find information specific for a lawsuit against your company.
The Basics
"The volume of data and e-communication is going up every year. The volume of data that lawyers have to review continues to grow," says Danny Thankachan, litigation support manager and e-discovery consultant with the Dallas law firm Thompson & Knight, LLP. "A case ten or fifteen years ago would have been majority paper documents and maybe one or two of the individuals involved would have had emails. Now, on average, I get two to three hundred gigs of email content. That can easily be around two or three million email messages."
Thankachan points out the biggest challenge in e-discovery: the vast amount of data that is accumulated in today's business environment. That volume of information then begets other challenges, such as the budgeting and staffing required to gather and search through the data. "Everything flows from the volume of data," says Owen O'Connor, CEO and founder of Cernam. "The more data you have, the more expensive e-discovery is, the more difficult it is, the harder it is to find those silver bullets in the documents."
Typically, the burden of searching the data falls on one side in a court battle. In employment-related cases, for instance, it is the employer who has the records and files that need to be searched, not the employee. "It is one of the troubling aspects of the justice system and this process," O'Connor admits.
Data used for e-discovery is stored in four categories, according to Gavin Manes, president and CEO of Avansic. Obviously, there are records, such as Word documents and PDFs. Then there is email, which "is more complicated because email may contain other files," says Manes. "The burden of email is not just the email but all the attachments." Data that resides in databases, cloud sources, or other formats that require an additional tool for viewing comes next. "You can't just give these files to an attorney; they need other tools and information to be able to examine the data," Manes explains. Last, but not least, is latent data, or as Manes says, the deleted or linked information that helps determine when things occurred and assists with filtering.
"I've had clients who told me they do e-discovery because they scan the documents and then review them," says Linda G. Sharp, associate general counsel of ZL Technologies, Inc. "That's not e-discovery. We're looking at social media, email, Excel and PowerPoint, and Word documents." The e-discovery process, Sharp explains, begins when a case requires discovering who has custody of the data, where it is located, and how to collect it before putting a legal hold on it. It's one of the biggest problems that corporations face today.
E-Discovering the Future
"When e-discovery was in its early days and a case was brought to us, one of the first things we'd have to do was try to second-guess who the custodians were when this case occurred three years ago," says Sharp. "Who was working on the project and where would the information be?"
"E-discovery gets complicated because of all the players involved," says Manes. "One of the things that makes e-discovery most challenging is that companies aren't prepared for litigation or any type of investigation."
Manes says the current approach for most corporations is to buy the newest technologies without thinking about the consequences involved. "We're finally starting to consider security when deploying new technologies," he says, "but we haven't reached a point where we're thinking about whether or not the new technology is e-discovery or litigation friendly."
An example of new technology not meeting e-discovery concerns is the growing popularity of iPads and tablets. "It's the trend of consumer devices that are leaking over into the business world, and we need to figure out a way to fit them into business. We don't have a way to prepare for litigation on iPads," Manes says.
The Price of E-Discovery
Costs in e-discovery can be significant. To search hundreds of gigabytes of stored data or millions of documents takes time and technology, as well as competent staff to search the data.
The first approach to get costs in line is the most obvious: Reduce the amount of data. Organizations often find themselves working from data silos-a separate set of data files not part of the organizationwide data administration. It divides how the organization approaches litigation, as every entity within the organization has to be dealt with separately.
Legal, IT, and other departments need to work more closely to determine how documents should be stored and if the documents need to be stored in multiple locations. "Companies can't afford to keep every piece of data for years," says O'Connor.
"We take a more holistic approach to looking at data across the enterprise," says Sharp. "We want to make sure a company is taking a unified approach to handling all of the data." From a storage perspective, this approach means reducing an infrastructure that currently requires housing 15 copies of the same document.
From a records perspective, single copies of documents allow for legitimate records holds to be put in place. "In the paper days, when a matter was resolved, the paper documents would be put in a box, dated, and it went to be destroyed on the retention cycle date," Sharp explains. "With electronic data, it is hard to do that because all of the important documents are together with the ‘honey pick up milk' emails and other personal stuff. With the ZL [Technologies] software, we have the ability to implement records policies based on the nature of the documents."
Moving beyond the volume, Manes says the primary reason e-discovery is a major corporate expense is unpreparedness. He points out three primary areas where e-discovery eats up costs: asset management (documenting computers and properly tracking them); email management (having the ability to do layered search is vital); and tape backups (searching tape backups is very expensive).
"The majority of the costs go to the attorney review of the documents," Manes says. "So the best way to save money is to eliminate documents or to make the attorney review more efficient."
Get Proactive
For most, the process for handling e-discovery has been a reactive approach, waiting until a subpoena arrived to announce a lawsuit before taking action. "The trick is to be proactive," says Jay Leib, chief strategy officer with kCura Corp. He recommends putting a plan together before the litigation bombshell is dropped. That plan will include what software and tools to use for e-discovery and who in the company will be involved in the e-discovery process.
Those who regularly work with e-discovery, such as Thankachan, turn to tools-primarily specialized software-to make the review more efficient and to help reduce expenses. "I have a lot of vendors who come to me, wanting me to use their tool," Thankachan says. One of his primary points of consideration in choosing a tool is how it can make the process more cost-effective for his client, which saves money in the long run. But, he adds, "I need to be able to use that software to be able to communicate its value to the clients I work with."
Thankachan follows the Electronic Discovery Reference Model (EDRM). "EDRM shows you the entire work flow of e-discovery, and every stage has different tools affiliated with it," he explains. Tools are needed for areas, such as early case assessment, case management, document review, production functionality, and case-specific scenarios.
He uses one tool that covers a number of those areas; having one tool that covers a number of functions helps the attorney with the communication and preparation process. "One of our attorneys is dealing with a technically savvy client who has been sending us tons of data," Thankachan says. "We process this into our Relativity tool from kCura so the data can be efficiently searched and reviewed. What the attorney said to me was that when he went into deposition with his witness, he was months ahead of the other attorneys who were also there because the tools made it possible for him to get through a greater volume of data effectively and allowed him to target his information.
"That's really the bottom line," he adds. "We want to use tools that allow the attorneys to be more efficient." Simply being prepared with good tools and strategy will help your company save time and money over the long run.