Dangers in E-Discovery


The big paperless case in the sky is coming your way and, believe it or not, you’re going to embrace it. Instead of tripping over boxes of documents, you will be enjoying all the benefits of using highly compressed electronic documents. Those who still scoff at high technology are costing their firms and their clients a fortune in wasted time, unnecessary expenses and avoidable errors. The price of devotion to paper may even include losing the case, since more than 35 percent of corporate communications never reach paper.

If you already scan documents and surf your case management system, you will be happy to know that more leverage is just ahead. Costly manual and semiautomatic document reviews are becoming ever more automated, with nanosecond turnaround times; breathtaking, fractional error rates; and innovative, mega-gigabyte cull-and-search tools.

Automation is now less expensive, not just more efficient than manual efforts. Even if there are errors, they are more easily recoverable, whereas human mistakes usually require major efforts to repair. The traditional 10-associate “document review” session does not give you more control; instead, it creates more difficult errors, costs much more, and takes a great deal longer.

Those who have learned the most efficient ways to manage electronic data recovery will have the easiest transition to paperless discovery. Instead of learning the hard way, as so many litigators have done, be alert to these common mistakes in the digital discovery industry.

Mistake No. 1:

Trying to go it alone. Try to use your vendor, your IT group and your own support staff where it’s a sound return on investment. Some firms are tempted to figure out
upfront page counts themselves, conduct manual reviews, use traditional reprographic and stamping techniques, search keywords and concepts, or sort subfolders and they lose precious days trying to open difficult or encrypted files.

When it comes to all three criteria — accuracy, speed and cost — automation wins. One industry study reported that a paralegal took 67 hours to find 15 of 20 documents out of 20,000. An electronic search would find all 20 in less than five seconds. A vendor whose core competency is electronic discovery will save you 70 percent of your high priced professional time and 30 percent of your hard costs. This leaves more time and money for lawyering.

 

Mistake No. 2:

Not strategizing cost containment. As in other forms of outsourcing, find a good partner who does everything you need and whose work you trust. Using different vendors for different tasks or changing vendors at different stages can be costly.

You can save money if a vendor gets your CDs or papers at the beginning of your case and keeps them on a secure server. From this collection, you can then generate sub collections to paper or CDs, or even to Summation or Concordance at various times through your litigation process. Electronic stamping, redaction and other versions go more smoothly and for less cost.

A case-long strategy lets you negotiate substantially lower page pricing, especially for all interim processing activities. There are fewer hands and fewer handoffs. Bundled pricing with fewer, more capable vendors is a win-win for all sides in terms of speed, resources used and electronic benefits leveraged. You pay only for what you need when you need it, and you pay once for the same step.

Mistake No. 3:

Trying to trim page counts upfront. Conducting a manual view and sort before you convert to electronic formats almost never pays. When it comes to accuracy, it’s
better to take people out of the equation. What you and your team can do in a week, vendors can do in two hours. It’s often less expensive and faster to send out all the material in the first place, even if it means sending more pages to the vendor.

The best process, even if you don’t want to go there yet, is this: Avoid paper. Don’t read. Don’t sort. Don’t burn CDs. Just process, search and move data to folders all electronically. Ask your vendor or IT manager how to save money using technology to cull large volumes of data faster. Keyword queries and sampling techniques can often quickly narrow your responsive documents, especially once they are in electronic format, no matter how many subfolders you need.

Mistake No. 4:

Recklessly opening and tarnishing native files. Don’t explore tapes, disks and hard drives that are not yet converted into a uniform, readable format. Unless you can disable automatic update fields first, so no one can challenge authenticity, you are flirting with delays and losses.

If you print HTML files, formats often default to a header and footer that mark page numbers and source file. The numbers are disconcerting, but the source file showing is worse because it gives away internal folder information or even proprietary secrets. Repress headers and footers to save time and money.

Manual, click-open-and-print production is the most costly and obsolete approach. Since a typical employee receives more than 30 e-mails a day, you may be trying to assess millions of them, about 3 percent infected with viruses. According to a study on the Harvard Law site on digital discovery, 40 percent will be non business communication and 18 percent will have attachments. It’s a minefield riddled with risk and delay.

Mistake No. 5:

Paying for waste. You don’t want to lose e-mails, attachments, spreadsheets, memos or correspondence, but you don’t want to pay for gobbledygook, blank pages and unnecessary duplicates either. To find all the relevant material but reduce redundancy is the delicate game of electronic evidence management.

Be sure your technicians can auto-de-dupe, de-blank, and send you “garbage alerts” when they see oddities. Be sure you define these features because one lawyer may repress blank pages with headers, but another might think they’re relevant. Decide where your tolerances are, or you’ll pay for 100,000 pages instead of 25,000.

Mistake No. 6:

Managing with blinders. When you receive a CD — or 15 CDs or five hard drives you don’t know the page count, e-mail count, memo count, file types or size. You may

be unfamiliar with the jaz disk or DLT tape format you receive. The sooner it gets to the vendor for conversion, the sooner you’ll know. When you convert electronic material to paper (a blowback), you may receive a lot of boxes of paper, but you won’t know if they’re complete or accurate without a metadata index. Be sure you get one back to help you control and automate an index quickly.

Mistake No. 7:

Losing data in the case. Maybe you don’t bother with the CDs from opposing counsel or you never look at the files your secretary can’t open, or you fear e-discovery “wars” or that your request was underinclusive. Most everything is recoverable despite viruses, dynamic and embedded files, legacy programs, passwords or encryption. Don’t pass because some file types are difficult to convert; they may have the hot e-mails you seek.

Mistake No. 8:

Missing hidden data. Even when you’ve collected it all, you can miss invisible data. When the content of a dynamic spreadsheet cell is larger than the cell, the content expands and can cause problems printing. If you don’t look at the cell content, you get only a rendering, not the true document. A formula may tell you more about the purpose of the spreadsheet and the author’s intention than the content alone.

Dynamic elements and other hidden data can create havoc when you print; Excel or Lotus 123 spreadsheets with auto-expanding cells, hidden cells or layered information are notorious. If you have to create a static document from this changing environment, it will alter what prints.
Office documents and e-mails, too, can have embedded images, pictures or tables that need to be depressed or frozen.

Mistake No. 9:

Not narrowing down key data quickly. When assessing e-mail data, determine the value of duplicate e-mails (8 percent of all e-mails are broadcasts) vs. forwarded
e-mails. It may pay to remove duplicates if it doesn’t harm your e -mail trails or limit your understanding of the chain of events. Work with your vendor to build a model or map that summarizes e-mail metadata and learn to leverage it quickly when you receive huge volumes of data. Create your own “discovery bots” or electronic queries to determine relevancy.

When it comes to digital data trails and e-mail chains, you may have certain elements of the story that are easier to assess when put on a spreadsheet, table, map or graph so that patterns and trends appear faster. If your litigation workflow process wasn’t well-formulated in the paper-centric days, it’s time to re-engineer it for the digital age.

Mistake No. 10:

Suffering a virus. Maybe only 1 percent to 3 percent of your materials will have viruses, but it adds up to a lot if you have a very large collection. Proper scans must run early, at several levels and on a separate server.

Mistake No. 11:

Trying to be a technologist. Learn the buzzwords, but don’t assume you’re the best person to strategize a mass TIFF conversion or e -mail rip. Legal professionals need to focus on the important discovery issues: framing requests, finding inconsistencies, privacy issues, destroyed evidence, proportionality, spoliation, contesting requests, relevancy rules, file

preservation and case strategy. Good relationships with legal assistants, IT staff and outside vendors will improve their performance and help you prepare the case better and faster, for less. Vendors whose expertise is automation, e-mail and file extraction, encryption technology, and electronic data analysis will find you shortcuts faster and strategize technical steps better if you tell them early on where you want to go. You will learn from them the best practices in digital
search techniques and other new tools.

Mistake No. 12:

Being a slave to your system. A big, complex case can put demands on your house system that slow you down or burden others temporarily. You may choose to use a secure ASP-based extranet site, which is a virtual repository. These allow several users clients, counsel or experts — to review electronically the same collection or print sections from their own PCs; may avoid portal and firewall problems that house systems can introduce; and avoids the need to shuffle CDs all over the country, which costs you time and risks security, too.

Now that you know some of the digital demons out there, you are one step closer to being a master of electronic document management. You and your team will celebrate the freedom from paper. As your costs go down, your victories will add up.

Author :: Julie Noble

Reprinted from Legal Times

Source : http://www.lsilegal.com/misc/12ways.htm

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