Natalie Price 195 East 600 North #14 Provo, Utah 84606 801-368-5418 natalieprice87@yahoo.com April 15, 2008 J. Michael Pemberton, Ph.D., CRM, FAI Information Management Journal 1345 Circle Park Dr. Knoxville, TN 37996-0341 Dear Mr. Pemberton: Please consider the attached article for inclusion in the Intellectual Property & Technology Law Journal. This article outlines the ediscovery process and then discusses the problems, regulations, and industry recommendations in regards to ediscovery. This article was compiled using sources from various scholarly journals, namely the Dispute Resolutions Journal, The Information Management Journal, The Yale Law Journal, as well as the Intellectual Property & Technology Law Journal. This article is very relevant to your readers. The segment of the law technology market that is dedicated to ediscovery is growing tremendously and is expected to continue to grow rapidly in the future. ediscovery is something that affects every company in every industry, so this article will be very useful for all of your readers. Thank you for your consideration. I look forward to your response. Sincerely, Natalie Price Natalie Price, CIO Content Analyst Company
ediscovery By: Natalie Price, CIO Content Analyst Company April 15, 2008
Summary In today s modern world, companies can easily store vast quantities of electronic data. While this is useful in the short-run, it becomes a real burden later down the road when companies are faced with pending litigation. This is because when confronted with cases, companies are required to search through their vast stores of data to look for a few key documents. This process, called ediscovery, obviously has many problems that make it more difficult, such as the huge volume of documents to be collected and reviewed, and the cost of reviewing each document. However, many regulations have been put in place to help make ediscovery better, and industry experts have started to develop their own recommendations to help companies prepare for ediscovery.
Article When was the last time you felt like you were searching for a needle in a haystack? Most people would probably respond earlier this morning. Instead of searching for a needle in a haystack, imagine that you re searching for a particular golf ball in the entire continental United States. This completely overwhelming task is similar to what companies face when they are required to search for relevant evidence in all of their corporate data. With the introduction of computers and the ease of storing data electronically, the amount of electronically stored information (ESI) has increased exponentially. Experts estimate that 99 percent of all documents today are in digital form (Anonymous 11). Of all corporate data, approximately 60-70 percent of it is estimated to reside in or be attached to email (Anonymous 11). While having all this data is useful in daily operations, it is an enormous burden when litigation comes because the courts require that this data be searched to assemble relevant evidence for litigation. This process is called electronic discovery, or ediscovery. This article outlines the general ediscovery process, describes its current problems, explains current regulations concerning this process, and describes suggestions made by industry experts to help companies prepare for ediscovery. The ediscovery Process The effort to define the ediscovery process has been led by the ediscovery Reference Model Project (EDRM), organized by Socha Gelbmann Consulting (Socha). According to the EDRM, the ediscovery process is organized into six main stages: Information Management; Identification; Preservation and Collection; Processing, Review, and Analysis; Production; and Presentation. The first stage is Information Management. In this stage, companies store all of their corporate data and organize it in a logical fashion so as to facilitate future retrieval (Socha). In the second stage, Identification, companies face pending litigation and decide what information they need to retrieve. This includes identifying the scope, breadth, and depth of ESI that they will need to search through in order to find relevant evidence for the case (Socha). 1
The third stage is Preservation and Collection. In this stage, companies gather all of the data that they identified in the Identification stage and protect it against any kind of tampering or damage (Socha). The fourth stage contains the majority of the work involved in ediscovery Processing, Review, and Analysis. In this stage, companies review each document for relevance to the case and privilege (Socha). Privileged documents include any kind of legal advice to a company from its legal counsel. Because of the extremely sensitive nature of these documents, they are protected against mandatory disclosure to the courts and to the public (Warshauer 10). Because privileged documents do not have to be presented in court, companies do all that they can to protect these documents from being disclosed in court by reviewing each document to determine if it contains privileged information. This part of the ediscovery process takes the most time and effort (Socha). This fifth stage of ediscovery is Production. In this stage, companies produce the relevant evidence that they have found and deliver it to various recipients involved with the case. Companies can produce evidence in various media (Socha). And finally, the sixth stage of the ediscovery process is Presentation. In this stage, the relevant evidence is actually presented in court (Socha). The goal of ediscovery is to produce relevant evidence that will be valuable in court. These six stages of ediscovery help companies find all the potentially relevant data and whittle it down to a more manageable set of relevant evidence to help build a good case. Current Problems With ediscovery While the ediscovery process works very well to produce relevant evidence it has many problems as well. These problems greatly undermine the effectiveness and efficiency of ediscovery. The problems can be broken down into two sub-categories: feasibility problems and challenges of producing good data. Feasibility Problems ediscovery has many feasibility problems that prevent companies from doing it successfully. The first of these problems is the sheer volume of data that must be collected and reviewed. Because of the ease of storing ESI, companies store massive amounts of data. Going through this data to identify what is relevant to the case is a monstrous task that can take hundreds of lawyers months to complete (Warshauer
9-10). Another problem that makes ediscovery even more difficult is that this review is very expensive. Experts estimate that each gigabyte of data costs about $1,800 to collect, process, and review (Anonymous 11). When companies have terabytes of data to sort through, this expense is a huge burden. Companies also experience problems with ediscovery because of the time constraints that courts impose on them for ediscovery. While hundreds of lawyers may need several months to review all of a company s gathered data for relevancy and privilege, courts are no longer willing to wait that long (Warshauer 10). With the new deadlines for ediscovery, companies find themselves facing the seemingly impossible task of reviewing millions of documents in a short period of time. To meet these deadlines, companies take shortcuts that can lead to inadvertent disclosure of privileged information or having weak evidence to support the case, both of which are very negative for the companies involved (Warshauer 10). These problems make ediscovery very difficult to do. Challenges of Producing Good Data In addition to basic feasibility problems, there are also many problems associated with the challenges of producing good, useful evidence from the ediscovery process. The first problem is the fact that few companies have implemented good record management systems within their businesses. This means that when a company needs to begin ediscovery, they often don t know what data they have or where it is (Swartz 6). This makes the process of identifying and gathering potentially relevant information extremely difficult. Also, by not having good record management systems in place, companies risk losing potentially valuable information through routine recycling, deletion of emails, etc. that occur everyday within their companies. This can harm them if litigation comes up in the future and they don t have this valuable data. Courts impose stiff sanctions in these situations, further hurting the companies involved (Warshauer 10). In addition to the loss of data that occurs because it is not managed well, spoliation of data can still occur even within a good record management system. Data can still be deleted or altered, and metadata can be eliminated (Snyder 53). All these things result in the loss of potentially useful data, and courts impose heavy sanctions in these cases (Anonymous 11).
Another problem with ediscovery is the high risk of inadvertently disclosing privileged information. Because companies review such vast quantities of data in ediscovery, there is high risk that some privileged information will be overlooked and inadvertently disclosed. This can have very negative consequences for the company the information can be used against them both in the particular court case and also in the public realm if appropriate (O Neill 13). An additional problem with ediscovery is that data can sometimes be extremely difficult to access. For example, many companies store data on backup tapes. To access the data on these tapes, companies may have to convert the data into another format. Also, because the data isn t indexed, it can be very difficult to find specific documents even if the companies know that they have them (Kim 1,482-1,483). In the face of these difficulties, some companies choose not to produce some data at all with the excuse that it is unreasonably accessible and suffer severe sanctions for it in court (O Neill 14). All of these problems associated with finding good data for litigation show that even if ediscovery itself is executed perfectly (which is extremely difficult, as illustrated in the feasibility problems section), it is still a very difficult process to prepare good evidence that can win a case. Current Regulations Concerning ediscovery To attempt to address these problems, numerous institutions have implemented multiple regulations regarding the ediscovery process, such as Sarbanes-Oxley and the recent changes to the Federal Rules for Civil Procedure. These new regulations maintain that companies have a duty to preserve data for litigation (Snyder 52-53). However, they acknowledge that some data may be inaccessible, and excuse these data from being included in ediscovery. In addition, these regulations will exempt companies from sanctions due to loss of data if the ESI was lost in routine, good faith operations of record management systems (O Neill 14). The most influential new regulation regarding ediscovery is the institution of mandatory Meet and Confer agreements between parties prior to beginning any ediscovery (Warshauer 11-12). In these agreements, parties are supposed to determine what ESI may or may not be produced and what format the ESI will be produced in (O Neill 13). In addition, the parties are also supposed to identify what data is not
reasonably accessible to determine what can be exempt from ediscovery. Also, the parties are to agree on a procedure for reviewing and disclosing privileged information and to agree on what to do in case privileged information is inadvertently disclosed (O Neill14). These Meet and Confer agreements should help parties understand precisely how the ediscovery will be done for each individual case, which will help prevent future problems in the trial itself. These regulations have also identified basic procedures for determining when data is not reasonably accessible (O Neill 14) and determining if privilege has been waived (Warshauer 10-11), to be used in these Meet and Confer agreements and also in court. These new regulations also require a representative from each company involved in the trial to testify in court regarding their respective companies record management (Snyder 52). This will help to motivate companies to adopt good record management systems. Industry Expert Suggestions While all of these regulations help to make ediscovery more feasible and more valuable to companies involved in litigation, some problems still remain. For this reason, numerous industry experts have issued various recommendations to help companies be more prepared for ediscovery. The first thing that industry experts suggest is for companies to do a complete inventory of all of their current ESI and then to create a data map for it. This will help companies know what data they have and where it is (Swartz 6). Next, experts suggest that companies create and implement record management policies and schedules. This will help ensure that companies continue to know what data they have and where it is even in the future as new documents are produced (Swartz 6). Next, industry experts suggest that companies implement Litigation Hold policies and procedures. These processes will help to ensure that when a case comes up, all the potentially relevant data is protected from any damage or deletion (O Neill 15-16). Finally, industry experts suggest that companies establish ediscovery collection and review processes long before they are ever faced with litigation. This will help companies go into ediscovery in a very organized, orderly fashion that will greatly reduce the time and cost needed to produce all the relevant evidence for the case (O Neill 15-16).
These recommendations by industry experts will help companies be much better prepared for ediscovery and much more capable of completing it successfully. Conclusion While ediscovery has many problems, these issues are being addressed as new regulations are passed and industry experts develop. If companies will take advantage of these new regulations and will implement these expert suggestions, the volume of data needed to be reviewed will decrease, the time and cost needed to complete ediscovery will diminish, the risk and frequency of spoliation and inadvertent disclosure of privileged information will drop, and most importantly the relevancy of the resulting evidence will increase. ediscovery is here to stay, and we re constantly getting better at it. Hopefully in the future, companies will be able to search for that elusive golf ball within a much smaller area than the entire United States, and they will be much more efficient at doing so.
Works Cited Anonymous. "E-Discovery Expectations." The Information Management Journal (2007): 11. Kim, Elaine Ki Jin. "The New Electronic Discovery Rules: A Place for Employee Privacy?" The Yale Law Journal (2006): 1481-1489. O'Neill, Maureen E., Kirby D. Behre and Anne W. Nergaard. "New E-Discovery Rules: How Companies Should Prepare." Intellectual Property & Technology Law Journal (2007): 1 3-16. Snyder, Kirke and David Isom. "A 30(b)(6) Can Sink Your Ship." The Information Management Journal (2006): 52-55. Socha, George and Tom Gelbmann. The EDRM (Electronic Discovery Reference Model) Projects. 14 April 2008. 14 April 2008 <http://www.edrm.net/>. Swartz, Nikki. "Firms Unprepared for E-Discovery." The Information Management Journal (2007): 6. Warshauer, Irene C. "Electronic Discovery in Arbitration: Privilege Issues and Spoliation of Evidence." Dispute Resolution Journal (2007): 8-15. This article was written in MLA style.