Enterprise Content Management
Providing Cost Efficiency to the Electronic Discovery
Process
By Julie Wade
The whole world is in economic turmoil,
perhaps the worst global
depression ever recorded. There were
about 1,400 legal jobs lost during the last
week of January alone. During these times,
we will see more lawsuits filed as contracts
go south and employees are laid off. There
will be more shareholder derivative suits,
more lawsuits seeking injunctive relief and
restraining orders, and we will witness a
new cause of action created in order to
recover damages as a result of the subprime-
rating agency-collateralized debt
obligation-derivatives-securitization meltdown.
A bona-fide lawsuit feeding frenzy
is on the horizon.
For these reasons, inhouse counsel are
now hard-pressed due to their devalued
stock prices and marching orders to reignin
the costs of litigation. Electronic Discovery
is one of the most expensive cost
components that parties to litigation are
required to incur. KPMG estimates that
first level document review encompasses
anywhere between 58% and 90% of the
total litigation costs. (See “Cutting to the
Document Review Chase,” American Bar
Association Newsletter, Business Law
Today, Vol. 18, No. 2, Nov.-Dec. 2008).
But it doesn’t have to be this expensive,
and it shouldn’t be. Despite the vendor’s
assertions today that the attorney review
time is causing all the weight, if you drill
down into KPMG’s study, you will find
that the costs for “processing” native files
into TIFs needed for loading into review
software on the market today is in fact the
cause of most of the costs. That is why
paralegals will start seeing their firm’s
clients wanting to utilize their own enterprise
content management (ECM) solutions
to bridge the gap between their own
records libraries with their electronic discovery
compliance requirements during
litigation.
To understand why an ECM solution
will lower e-Discovery costs, let’s look at
the why’s and wherefore’s behind the e-
Discovery process, and address how using
the client’s ECM system will facilitate
native document reviews and productions
in a secured, cost-controlled environment,
thereby reducing a significant portion of
out-of-pocket costs incurred for discovery.
Preparing a Case for e-Discovery
Litigation is a contentious proposition. You have a lawsuit. There are issues of
standing, venue and jurisdiction to consider
in addition to the four corners of the
case. Once these issues are fleshed out and
a lawsuit is filed, the corporate defendants
are notified through service of process and
generally have 20 days to employ an attorney
and file an answer or response to the
allegations asserted against them.
In federal court actions, the attorneys
will have to meet and confer with opposing
counsel within 99 days of service of the
complaint to address plans for the management
of the litigation including discovery
issues relating to electronically stored
information (ESI). During this first 99
days after service of the lawsuit, the attorneys
and their paralegals should, among
other things:
- initiate, implement and manage a
proper litigation hold;
- establish and meet with the client’s
Discovery Response Team (DRT)
and establish protocols for the collection
and review of the client’s
ESI;
- establish the paralegal as the single
point of contact between counsel
and the DRT to coordinate and
manage the collection, review and
production;
- know their client’s computer systems
and storage methodologies and
cycles;
- create or be provided with a datamap
of same,
- identify key players and custodians
relevant to the issues of the lawsuit;
- cull and sample documents from
the key custodians’ computers or
records libraries;
- interview the key custodians and
witnesses;
- identif y a corporate representative
of the client for testif ying and meet
with same;
- consider and draft proposed key
word search terms to initiate on the
collection of their client’s ESI and
search terms to impose on the other
party’s collections;
- sample the key custodians data sets
with the proposed search terms and
annotate the results, refine and do
again as necessary;
- consider and draft first discovery
requests to opposing parties and codefendants;
- consider and identif y review tool
platforms, search methodologies
and vet ESI vendor partners if necessary;
and
- prepare a training methodology for
the document review team.
All of these tasks are all performed precollection.
Once the data is collected, life
gets much busier.
Collection Methods & Technologies
There is nothing more ubiquitous than
electronic files. Massive quantities, terabytes
and petabytes, of ESI are being collected
for the review process. It is a large
and costly proposition.
There are a myriad of operating systems,
software applications and utilities
available to facilitate the organization and
law firm in culling down the amount of e-Discovery required for the first pass
review. Some of these technologies are
promising, such as robust review tools that
offer clustering analysis
and data mining and
provide for efficient high
level filtering and foldering
of data. None of
which, by the way, have
been tested in court. You
should know that.
But more frightening
to me is the fact that our
current ‘best practices’
model takes an electronic
file and strips it of all
its properties, data and
metadata and then
“attempts” to shove it
back together again in
separate text files for
loading into a flat and
obsolete database architecture
that was never
designed to house massive
amounts of electronic
files. I say
‘attempts to put it back
together’ because this method consistently
fails by delivering high error rates. Indeed,
research of the very best OCR software
available on the market today indicates
that these error rates are reflected at “8
errors per 2,000 character page.” (See
http://www.ocrdoc.com/why_primeocr.ht
m.)
Therefore, our best practice system of
utilizing OCR in this manner to recreate
data and metadata after extraction is one
fraught with errors that have been clearly
documented as being as high as 50% during
document reviews. (See id: “Cutting to
the Document Review Chase,” American
Bar Association Newsletter, Business Law
Today, Vol. 18, No. 2, Nov.-Dec. 2008).
This system of “processing” ESI has
assailed itself into our legal system. We
must find a replacement because the
courts are mandating today that we
demonstrate a legally defensible and
repeatable methodology for producing
electronic discovery.
The Answers
What are the answers? First, the courts
want cooperation between the parties during
the discovery process. Mancia v.
Mayflower Textile Services Co., 253 F.R.D.
354 (D. Md. 2008). No more tanking
opposing counsel with dubious search
terms during the meet and confer to
throw them off track. Judge Grimm wants
to ensure you aid opposing counsel or he
will sanction you. (Does this mean that
you should just provide user logins and
passwords to your client’s networks to the
opposing counsel? Not yet.)
Aside from the sampling protocols suggested
in established electronic case law
(Zubulake III), other recent case law suggests
expert analysis of our search terms
and sampling as means of assisting the
requestor in obtaining additional discovery.
Ross v. Abercrombie & Fitch Co., 2008
U.S. Dist. LEXIS 87039 (S.D. Ohio Oct. 27,
2008).
Personally, I think the sanctions being
imposed by the courts are real, but I also
believe that proper use of data maps, interviews
of the key custodians, and management
of the overall review process would
go a long way to alleviate the wrong turns.
But clearly, cooperation is indicative of the
day.
ECM Solutions
Our clients, themselves, are providing us
with the solutions to our e-Discovery
problems by their adoption
of ECM systems.
Whether your client uses
SharePoint or an open
source ECM solution,
bridging these ECM document
management systems
with e-Discovery
review and production
will take us in the right
direction in the future.
That is because ECM
incorporates the organization’s
structured and
unstructured data into
records repositories or
libraries. This includes all
documents, e-mails,
images, voice data, and all
other content that is
received, including faxes
and incoming correspondence
that are scanned
and digitized. The error
rates of utilizing OCR in
this manner are greatly reduced because
only a small fraction of the total corporate
content is being digitized, and that content
can be controlled through the use of spell
checking software and proofreading for
accuracy which will greatly reduce or eliminate
the errors we are seeing in the review
process.
But the main upside to an organization
for implementing an ECM solution is that
they are able to control their corporate
data in a safe environment.[1] Through
add-ons, all “touches” to a file are known.
This greatly facilitates security and versioning
control. Entire groups or segments
within the organization can be managed
singularly from an administration
console.[2] Also, IT loves ECM [3]. And,
metadata, corporate taxonomies, retention
policies, and litigation holds are easily
managed with ECM.[4] Also, when litigation
occurs, companies utilizing ECM are
now are in a much better position to institute
holds, either throughout the entire
organization or on a drilled down basis
directly to individual operating units and
custodians from the administrator’s dashboard.
[5]
Out of the box, Microsoft Search Server
2008 Express also allows organizations
to search across all their exchange servers,
archives, SharePoint servers and websites –
simultaneously.6 This feature in itself
makes the process worthwhile to smaller
organizations who do not have SQL Server
2007. These companies will then also be in
a much better position financially to
respond to discovery requests during litigation
as the larger organizations. Companies
utilizing ECM solutions can seamlessly
index and migrate relevant libraries and
custodian data for privilege and relevancy
reviews, behind their own firewalls, onto
SharePoint sites for outside counsel’s use.
None of their data leaves their control.
They no longer have their documents
strewn across 58,000 different copy shops
on any given Sunday. Their outside counsel
are provided with secured SharePoint
sites, or the data can easily be migrated to
counsel’s extranets for the reviews.
ECM data is crawled, indexed and
migrated to SharePoint sites or extra-nets
for use with third-party native review
applications such as Anacomp, Attenex,
Clearwell, Fios, Kroll, to name a few. The
data is not processed into TIF files, which
eliminates these huge error rates and easily
saves 1/2+ of the costs associated with electronic
discovery today. That is huge. And a
compelling reason for Fortune 500 companies
to adopt their ECM systems with
their litigation case management strategies.
AIIM, a non-profit organization that
provides education, research, and best
practices to help organizations find, control,
and optimize their information, offers
excellent certificate training programs in
Enterprise Records Management, Email
Management, Search/Information Organization
& Access, among other disciplines
(www.aiim.org). I highly recommend that
you join AIIM ($125 for a professional
membership) and at least have access to all
the whitepapers that will help you understand
corporate information governance.
In the meantime, ask your clients if
they have an ECM solution. If they do,
work with them to migrate their documents
to a SharePoint site or your firm’s
extranet for privilege and relevancy review.
Watch for vendors to release new review
applications that will work in conjunction
with SharePoint.
Julie Wade is a Litigation Paralegal and
Certified Electronic Discovery Specialist in
Houston, Texas.
- http://technet.microsoft.com/en-us/magazine/
2007.01.security.aspx,
http://www.scriptlogic.com/products/securityexplorer/
sharepoint/; and http://www.sharepointsecurity.
com/content-198.html.
- http://www.avepoint.com/products/sharepointadministration/
sharepoint-administrator
- http://cglessner.blogspot.com/2009/01/self-awareness-
with-twitter.html; and
http://blogs.nuxeo.com/sections/blogs/thibautsoulcie/
2008_06_04_ecm-love-ecm-sites-ecmweb-
features-and-ecm-usability.
- http://www.cadence-group.com/articles/taxonomy/
backbone.htm
- http://www.avepoint.com/products/sharepointadministration/
sharepoint-administrator.
6 http://weblog.infoworld.com/tcdaily/archives/
2007/11/post.html.
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