E is for Evidence: Using an Online Repository to Review and Produce Electronic Data i. Michele C.S. Lange ii

Transcription

1 E is for Evidence: Using an Online Repository to Review and Produce Electronic Data i Michele C.S. Lange ii The age old axiom in succeeding in any venture is to surround one s self with the best and brightest. In litigation, this axiom is no different. Clients strive to employ the best possible team of lawyers, paralegals, litigation support personnel, and consultants. Firstrate technology should be on the list of tools in any litigator s arsenal. In today s high-tech marketplace, technology solutions confer strategic advantages upon litigation teams that know how to use them to their advantage. Lawyers are finding that it is essential to be familiar with the technological developments just as thoroughly as they understand the legal developments. Today, electronic discovery is becoming a mainstream litigation practice. In recognition of the reality that the vast majority of business is conducted electronically, lawyers are seeking production of opponents electronic data and judges are routinely issuing electronic document preservation orders. As a result, producing parties must develop and implement an electronic discovery plan to collect, analyze, categorize and produce e- evidence, in the most efficient and accurate manner possible. Just like paper discovery, attorneys and paralegals typically review the electronic documents for responsiveness and privilege before any data is turned over to the requesting party. However, just like almost every other aspect of our daily lives, technology offers a solution that brings the task of e- discovery document review into the new millennium online electronic document review. What is electronic discovery? How can technology streamline the collection, sorting, and analysis of electronic evidence? What is an online repository? Why is electronic review superior to paper review? What should you consider when selecting an online repository? This article will answer each of these questions. The electronic evidence explosion The reality today is that our clients operate in a digital world and are creating e-evidence at a breakneck speed. Consider these statistics: In 2001, businesses in North America sent an estimated 2.5 trillion messages, a number expected to grow to 3.25 trillion in Source: Elizabeth Weinstein, The Wall Street Journal, "Help I'm Drowning in !" (Jan. 10, 2002). It is estimated that 625 million computers were in use worldwide at the end of Source: D'Laarni A. Ortiz, BusinessWorld, "Where does the PC go from here?" (Dec. 12, 2001). The International Data Corporation estimates that 31 billion person-to-person s are sent each day in This number is expected to grow to 60 billion

2 each day by Source: Gretel Johnston, IDG News Service, "You've Got Mail!" (Sept. 26, 2002). The worldwide Internet population grew to a record level of million users in January Source: CyberAtlas, "Top Online Properties of January 2002" (Feb. 8, 2002). The average office worker in the U.S. sends and receives between 60 and 200 messages each day. Source: Kevin Craine, "Here Come the Lawyers. Is Your IT Department Ready?" Within 10 years, the total number of electronic records produced on the planet could be doubling every 60 minutes. Source: Rich Lysakowski & Zahava Leibowitz, "Titanic A Call To Action." Because of the exponential growth of technology, and other electronically generated documents have become an important source of evidence in legal matters. What is electronic discovery? The Federal Rules of Civil Procedure and case law iii specifically require the disclosure of data compilations (e.g., electronic files, databases, s) following a full investigation of the case. This imposes a duty on attorneys to: Determine whether or not electronic data might be a legitimate part of the case. Implement strategic e-discovery plans, including identifying, locating, retrieving, preserving and authenticating electronic evidence. Identify the most cost-effective means for responding to electronic discovery requests with minimum disruption to ongoing business operations of the client. Develop strategic plans for dealing with I.T. systems and data of the client, opposing party and third-parties. Develop and implement data preservation plans. Formulate responses and objections to interrogatories and requests for production. Produce responsive documents to the opposing party, court, or agency. In working with the client s I.T. staff, counsel will find that data will commonly be located on individual desktops and laptops, network hard discs, removable media (e.g., floppy discs, tapes and CDs) and, increasingly, personal digital assistants (e.g., Palm Pilots). Data may also be in the possession of third parties, such as Internet service providers, and on the computer systems of other peripherally involved entities. Once the target data is identified, the electronic evidence expert or internal litigation support team puts the data through several procedures collection, filtering, and processing before it is produced. Not every electronic document found on a custodian s computer or on backup tapes is responsive or relevant to a discovery request. Data filtering technology can narrow the universe of data down to a smaller, more manageable set by:

3 Limiting the universe of data to only those key individuals involved in the case. Removing or flagging documents, , and attachments by keyword searching for relevancy and privilege. Removing duplicate documents from the initial review and repopulate for the final production. Removing extremely large files and review for relevancy in the file s native format. Eliminating blank pages. Limiting spreadsheet and database files to a certain number of pages per tab or table. What is an online document repository? After potentially responsive electronic data stored on hard drives, backup tapes, servers, and other media has been identified, collected, and filtered using a keyword list and other methods, counsel has several output options for reviewing the hit s and documents: printing to paper with slip sheets containing metadata, burning the native data to CD-ROM, importing the data into a litigation support system (i.e., Concordance, Summation, etc.), or uploading the data into an online document repository for attorney review. Using an online review tool is becoming a more appealing option for litigators faced with electronic document productions. Instead of printing and shipping an enormous volume of documents and then reviewing each set of data box by box, reviewers can remotely access their documents via a secure Internet connection and review, categorize, redact and annotate those same documents electronically file by file. What are the benefits? There are many advantages of using an online document review tool. Perhaps the most obvious is efficiency. Studies show that searching, viewing, classifying, and marking data electronically simply saves time and money. iv In addition, using an online review system is more accurate than traditional paper review because a computerized database catalogues each document, ensuring that no documents are overlooked or misplaced. Further, managing the logistics of the review is simplified with an online document review tool. For example, for paper review it costs additional money to bring the documents to the review team or to bring the review team to the documents. With online review, however, the document review can be conducted by multiple review attorneys in multiple physical locations with the click of a mouse. Further, litigation managers have access to comprehensive reporting options to monitor the progress of the review. A worthy online review system will allow an attorney to run reports inventorying items such as: what has been reviewed, what documents are left to be reviewed, and how many documents each reviewer has evaluated in a certain time frame.

4 Depending on the characteristics of the review tool, there are also many technological benefits. For example, most online repositories convert nearly any electronic file type to a uniform format (i.e. TIFF or PDF images) no matter what program was used to create the original file. With an online repository, the client does not need to open each file in its own native software application. Also, most document viewers allow for sophisticated searching and categorization capabilities. Attorneys or paralegals reviewing the documents can easily mark the document as responsive, non-responsive, privileged, hot, etc. Online review tools also have highlighting, annotation, and redaction features. Some tools even allow you to search for potentially privileged documents and then create a privilege log with the mere click of a button. Reviewing electronically created documents in an online repository also ensures that all computer based evidence is evaluated and reviewed. Reviewing only printed documents results in an incomplete body of evidence because the metadata (i.e., data about the data things such as the last accessed date, last modified date, to, from, cc, bcc, etc.) is not displayed. Using an electronic review tool keeps the metadata with the document and allows the reviewer to search this important information. Finally, an electronic document repository can be used as a production tool when producing the responsive data to the court, opposing party, or agency. While this trend has yet to catch on in the litigation context, in a step toward facilitating a truly paperless production, the merger enforcement agencies of the U.S. federal government now permit parties to produce documents in online repositories when complying with antitrust investigations. v Once the parties have conducted their internal reviews for responsiveness and privilege using the repository, they then transfer the production set to a database established especially for government s review attorneys. Facilitating the government s review of responsive documents through the use of a remote repository saves time and cost and may help streamline the merger investigation. It is only a matter of time until the online repository reaches the courtroom. Top 10 Considerations When Choosing an Online Repository When selecting an electronic review tool, the following factors should be considered. 1. Speed Look for a software package that provides for speedy document viewing. Some software packages transmit entire documents over the Internet. This protocol is slow and unwieldy and can slow down the time it takes to complete the document review. Instead, to facilitate faster transmission, only screen shots should be sent across the Internet. 2. Security The data review tool should handle all security issues. A secure and efficient repository solution should not transfer image file data (PDF, Tiff, or otherwise) across the Internet where it has the chance of being unlawfully intercepted.

5 Instead, all data should remain closely guarded at a secure facility where it is never at risk of being unlawfully accessed. PDFs can be password protected but this still may be an unsure solution given the talents of Internet hackers. A better option is to never transmit entire sets of data across the Internet in the first place, even if it is password protected. 3. Ease of Use The repository s graphical user interface ( GUI ) should be easy to use. The layout should be familiar (i.e., similar to a common word processing or system such as Microsoft Office) and simple to navigate to the commonly used functionalities. Utilizing the system should be virtually instinctive so that minimal training is required. 4. Functionality - Search for a sophisticated tool that offers note-taking, highlighting, redaction, de-duplication, control numbering, custom branding, and visual clarity. Each of these features should have high-level functionality that supports the attorney review process. For example, the viewer should accelerate the review process by highlighting key search terms and enabling the user to quickly jump to each instance of a keyword. 5. Self Administration Beware of repository tools that do not provide for self administration. Some software packages require the document review supervisor to call the electronic evidence expert for simple tasks such as adding new reviewer profiles, assigning or reassigning data sets, running reports, etc. Instead, the review tool should enable the manager to organize and administer the data review process without having to continuously contact the expert. As the review progresses, the manager should be able to generate a variety of reports to monitor the progress of the review. 6. All inclusive software Look for an all inclusive software package that does not require any additional software to be downloaded before documents can be reviewed. Some data repository viewers require other computer programs to be purchased and installed at each data reviewing workstation in order to operate the review tool. An all inclusive repository package only requires an Internet browser (usually Internet Explorer 4.0) to run the data viewer, thus saving time and money. 7. Organized File Structures Pay careful attention to the file organization system which houses the captured data. The review tool should not merely dump the data into one large file. Instead, the software should allow a manager to classify the data into logical file sets (i.e., user, date, size, etc.) that can be easily broken up into assignments for the review team. 8. Searching Consider the searching capabilities of the review tool. The tool should provide for sophisticated capabilities that search across the text of the messages, metadata, and all attachments.

6 9. Output Once the review is completed, the software device should allow for quick and easy printing of the responsive documents. Pay special attention to whether the expert hands the printing duties off to a third party, which diminishes the client s flexibility and control over the project. You should also ensure that the expert can transform the review database into a production database if needed. 10. Privilege Searching and Log Creation: Look for a repository that offers you unparalleled assistance in the search for potentially privileged documents and the creation of an automated privilege log, saving you critical time in the review and production process. Conclusion Today, 93% of all business documents are created electronically. vi Given this high-tech component in today s corporate culture, litigators who embrace technology gain strategic advantages for their clients. Utilizing an online document review repository is one such technology tool that assists in the electronic discovery process. Keeping electronically generated documents in an electronic form not only saves money but also increases the efficiency and accuracy of the discovery review and enables more effective advocacy. An online repository review tool should not be overlooked when planning the discovery strategy for the case. With these types of first-rate technology tools, litigation teams can surround themselves with the best and brightest and confront the online revolution byte by byte. i This article originally appeared in the June 2003 edition of the Journal of Internet Law, Volume 6, Issue 12. Reprinted with permission. Aspen Publishers Inc. ii Michele C.S. Lange (mlange@krollontrack.com) is a staff attorney with Kroll Ontrack Inc, an electronic evidence expert based in Minneapolis, Minnesota. iii See Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. May 9, 2002) ( Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer-stored information is discoverable under the same rules that pertain to tangible, written materials ); Linnen v. A.H. Robins Co., 1999 WL (Mass. Super. June 16, 1999) ( A discovery request aimed at the production of records retained in some electronic form is no different in principle, from a request for documents contained in any office file cabinet ). iv George Socha & APS Document Management Group, Determining Your Return on Investment (ROI) for Automating Litigation Support, < v See Statement of the Federal Trade Commission's Bureau of Competition On Guidelines for Merger Investigations, vi Crane, Kevin, Designing a Document Strategy, McGrew & McDaniel Group, Inc. (2000).