Consultants Corner Avoiding Common Pitfalls When Handling Electronic Discovery

Saturday, October 1, 2005 - 01:00

The Editor interviews Sean M. Foley, Director of E-Discovery Consulting, On Site E-Discovery Inc. Questions can be directed to him at sfoley@onss.com.

Editor: Please tell our readers about your background.

Foley: I began as an associate at a large DC law firm and eventually found myself in an in-house counsel position at AT&T Wireless. That's where I had my first exposure to electronic discovery as we looked for more manageable ways to deal with the large amounts of data that we had to produce in response to discovery requests. I soon dove head-first into electronic discovery as an electronic evidence legal consultant providing end-to-end computer forensics and electronic discovery solutions. Now I find myself at On Site E-Discovery as its director of e-discovery consulting.

The nexus where law and technology meet has always been my focus, and On Site sits squarely in the crosshairs of those two fields. My role as a genuine discovery partner to our in-house counsel clients and their law firms is particularly rewarding. Our CEO, Mark Hawn, has done an outstanding job implementing his vision of providing a top-tier, one-stop shop for electronic discovery and computer forensics services. Our complete solution provides services ranging from consulting, data collection, online document review and data production to opposing counsel. We are one of the few players who can offer all facets of the electronic discovery process and do it well.

We currently have offices in New York, Atlanta, Philadelphia, Wilmington, DC, Houston, Los Angeles and Chicago. Over the next two years, we plan to open a number of additional offices. Because we are already doing business at multiple locations in Europe, the next logical step is to have an On Site office in a major European city. We also have our sights on other international locations.

Editor: What is your role at On Site?

Foley: I head up a group of attorneys who provide consulting services to large law firms and Fortune 500 companies. Our team provides consultative assistance to litigators and antitrust professionals to help them avoid the common pitfalls that legal professionals often fall into when confronted with electronic data in discovery. We regularly manage cases where On Site's computer forensics and/or electronic discovery services are required. My team members can also act as third-party electronic evidence experts in litigation or regulatory proceedings.

Finally, our consulting team provides continuing legal education. For many legal professionals e-discovery is still a new process. We provide courses and other educational functions to facilitate a discourse with legal professionals on the policy and practical issues associated with e-discovery.

Editor: How can in-house counsel avoid the common pitfalls when handling e-discovery?

Foley: You don't have to look further than the business section of the local paper to see the devastating effect that electronic data can have on corporate America. Failure to produce electronic documents or the loss of electronic documents that should have been preserved for trial can have catastrophic consequences on an organization.

A recent example is the Morgan Stanley situation that occurred a few months back. The $1.4 billion verdict was tied directly to Morgan Stanley's failure to produce emails and other electronic documentation on backup systems. The merits took a back seat to alleged discovery abuses and procedural issues. It became a sideshow about the production of electronic documents and the failure to produce that documentation appropriately and in a timely way. It's a rather extreme example of the explosive consequences that can result when a corporate defendant fails to take the appropriate steps in the discovery process and those lapses upset the judge and are further exploited by plaintiff's counsel. As a sidebar, the plaintiff in the Morgan Stanley case actually offered to settle at one point for $20 millionÉa bargain in hindsight.

One important step in avoiding similar problems is to turn complex forensics and electronic discovery matters over to an expert. While law firms are wonderful in terms of legal representation, in-house counsel are becoming increasingly wary about delegating decisions with respect to electronic discovery and computer forensics. More and more often, corporate counsel has an expert or two whom they trust and request in turn that their law firms work with those experts.

Although electronic discovery is exciting to geeks like me, for corporate counsel it is often yet another roadblock they would like to quickly maneuver past so they can focus on substantive legal issues. When counsel calls a consultant, they typically do so because they have a problem that needs to be addressed, not because they are dying to hear about the latest electronic discovery processes and gadgetry. An expert who explains complex processes in simple terms, is available on short notice, and executes with timely work product is generally how long-term relationships with corporate counsel are maintained.

Corporate counsel should check the expert's credentials and contact references. On the forensics side, the expert should use best practices, such as establishing a chain of custody for identifying who has accessed what documents and when. They should also look at the expert's protocols for handling client media. They should ask if the forensics expert can provide testimony if it becomes necessary and whether the expert can provide certified affidavits. With respect to e-discovery, it is often important to know the expert's capacity for processing and storing electronic documents, and the expert's technology options for attorney review of those documents.

Editor: What tools can help corporate counsel not only to review, but also to organize and analyze, documents online?

Foley: Web-based document review systems can be a fantastic mechanism for document review and end-to-end litigation management solutions. They offer concept searching, reporting, and robust administrative capabilities. Because the systems are web-based, corporate counsel can "check up" on the work being done by their law firms simply by logging into a secure online document repository. It allows in-house counsel to share, view, and discuss documents without ever having to wait for a FedEx, fax or even an email attachment.

Online tools are also beginning to offer document management solutions outside of the litigation context. For instance, online tools are now being used for warehousing corporate files and email archiving systems.

Editor: How can experts assist in-house counsel to narrow the scope of documents to be reviewed?

Foley: It is not cheap to have a large group of attorneys review documents for relevancy and privilege in preparation for document production. It is important to talk about data filtering technologies up front to limit the amount of documents for review. The primary benefit to in-house counsel is the impact on the company's bottom line. The less data for review, the less billable attorney time will be spent on document review.

The expert can offer a number of data filtering options to take a large set of data and narrow it down to a manageable universe of data. One methodology is key word searching. We can take any list of key words identified by corporate counsel and run it across the large data set so that the documents reviewed are only those that take a "hit" on that designated list of key words.

Another option is file-type filtering. Countless applications create files. If we can limit the review to just a small number of file types (i.e., .doc, .xls, .pdf, .msg), we can substantially reduce the number of documents for review.

Date-range filtering is also an effective way of culling data. The client may have data that spans years but may only need data for a specific time frame, say, six months. An electronic discovery provider can limit the data for review to those documents covering only the relevant time period.

Another common way to decrease the volume of documents for review is through de-duplication. Duplicative documents can appear again and again within the same data set. De-duplication can save reviewers from having to review the same document time and time again.

Editor: What tools are available to help segregate privileged or confidential documents?

Foley: The expert can work with the client to develop a structure by which documents can be tagged as either relevant or privileged. The tag remains on the document so it will not be commingled with other documents and can later be pulled into a folder exclusively for privileged documents.

One of the nice things about using databases for document review is that they allow counsel to create the required logs which list the documents that have been excluded from production due to privilege. In the old days that log had to be created manually. Creating a manual privilege log can be a lengthy process. An electronic database can generate these logs automatically, saving an extraordinary amount of attorney time.

Editor: What is metadata and why is it of concern to corporate counsel?

Foley: Metadata is the data about the data. You have the language in the document and then the metadata embedded within the document. Metadata reveals information such as when a document was created, when it was last accessed, who it was sent to and where it was stored. Metadata can be critical to a case, especially when time sensitive events are important to the outcome.

The important thing to keep in mind about metadata is that it is easily lost or altered when data collection is not handled properly. Forwarding an email, saving a document, or even just clicking on a file can permanently alter a document's metadata. That's why it is so important to consult a computer forensics expert if counsel suspects that metadata may be relevant to the case.

Please email the interviewee at nboswell@transparency-usa.org with questions about this interview.