Legal departments confront ever increasing demands for more complete and comprehensive disclosure of electronic documents within shorter and shorter timelines. The onslaught grows and will intensify as the amount of electronic communications and business data continues to grow. In addition, changes to the federal rules governing electronic discovery going into effect in December will compound the challenges that law firms and clients will face to review more documents in a shorter time frame.
With discovery requests growing exponentially, the legal department's challenge is to get smarter and faster or to spend more money and time in reviewing documents. If court deadlines are missed or production is incomplete, adverse inferences or other sanctions may be imposed.
About 85 percent of getting thru a document review relates to complying with a discovery request from the opposing party. As the scope of what is discoverable and 'accessible' grows, the challenge to produce compounds.Before documents can be produced, they have to be converted into a form that they can be searched, organized and reviewed.Asreviewers check for responsiveness and privilege, they likely will take several looks at a document or groups of documents to ensure that they are not producing any privileged information. After looking for emails containing attorneys' names, firms' names, email addresses, privileged statements, or other key words and phrases, the reviewer tags the documents as to the issues involved.
Most often, the processing (e-discovery, scanning, etc.) and review of massive collections of documents are at the responding party's own expense.Proactive litigation managers need to implement better, more flexible processes that save the legal department (and client) time as well as money. Their needs have spawned a new generation of tools and services.
Government investigations can also entail review of massive collections of documents whether the matter has been initiated by the SEC, DOJ, FTC or other agency. The volume of documents requested in a government investigation can be expected to exceed the volume requested in civil litigation and have some unique requirements and opportunities.
In civil claims, often a judge will determine the outcome of a party's challenge to the reasonableness of the opposing party's request. During a government investigation, there is generally no arbiter to make that determination. If the government says that it wants to see certain documents, in most cases you will have to produce that information regardless of the cost and inconvenience of production.
Surviving The Onslaught
The best way to survive the on-slaught of demands to review documents faster and cheaper is to empower the litigation support manager to get the job done as effectively and efficiently as possible. Empowerment begins with the right strategy and right tools.
When a discovery request comes in, the first step of an effective strategy is to understand what you have. You need to take an inventory of what you have been handed (CDs, DVDs, tapes, hard drives) and to identify other locations of the electronic devices containing the potentially responsive documents.
The second step is to get control of the process that turns the raw materialand data into a usable format for use and review by the legal team.
The third piece is to get the information processed (full-text searchable) so that you can easily search thorough it.
The fourth task is to organize the information into folders, tag it and then decide what you have to produce to the other side. The review process takes place during the tagging and organizing phase. Sometimes as simple an approach as determining what is non-privileged and responsive is required, and at other times a document must be coded for specific issues or elements of the case. You may have to redact information from the documents to be produced. For example, customers' personal information may have to be redacted if disclosure would violate federal and state privacy laws.
Because discovery requests must be met in a timely fashion, the litigation support manager needs to gather, filter and cull documents quickly so that the attorneys have the maxium amount of time possible for review. In traditional e-discovery, often the time consumed by the vendors' processes forces the legal team into a highly compressed document review (and sometimes unachievable) time frame.
Empowering the litigation team with a tool that automates elements of e-discovery and organizing the document review can help the litigation support manager to minimize the time required to start reviewing documents, which leaves more time for the attorneys to analyze the documents and develop their case strategy.
With the right tool, the litigation support manager can start to work on processing and loading documents as soon as a request arrives. The documents can be online for review often in minutes and hours instead of days, weeks and sometimes months associated with data which is sent to an outside vendor for processing and hosting.
Having the right tool in-house can help the legal department to make better choices on what resources it assigns to a project. And, the time savings can be invaluable because there is virtually no delay between the start of the e-discovery process and when attorneys can begin the review. In addition, when documents are added to the system, attorneys can review them almost simultaneously. Gaining control and visibility ultimately is in the best interest of the attorneys on a case as well as the clients. Empowering the litigation support manager as the 'go to' person for facilitating these matters is a win-win approach.
A document review tool has to be able to do a majority of the things that the outside vendor can do. The tool should enable administrators to go directly to their private portal and load documents, which would then be instantly ready for full-text searches and review.
Documents should be able to be uploaded and reviewed in their native format, which eliminates the need to convert documents to a .tiff or .pdf format. The tool should extract text automatically, which aids in filtering and culling document collections more quickly and more accurately. This eliminates the time and expense of sending document collections to an outside e-discovery processing center.
Built-in imaging tools should enable the user to zoom, rotate, annotate, brand and redact images. They should also allow the user to highlight, stamp, draw arrows and use fully searchable notes. Users should be able to save markings for shared viewing.
The tool should have a multi-level folder architecture to enable electronic documents to be organized in the same manner as paper documents. For example, they can be organized in coded and named folders for easy recognition.
The security of the system is important. One of the worse things that can happen is to inadvertently produce documents to the other side or have intruders get into the system. The tool must be safe, secure and locked down to ensure confidentiality of the company's records. Administrators should have direct access to a flexible security mechanism with customizable levels of security where they can set up access rights at the individual user level. User activity should be able to be tracked and logged.
Administrators should be able to design their own tagging and categorization and define exactly what information needs to be captured by reviewers.
Once documents are loaded, users should be able to post comments, edit, annotate and share documents so that they can collaborate without delay. The system should log who has viewed any document and maintain a record of any comments, edits, annotations, sharing and collaboration so that the chain of custody is always preserved.
Providing In-House Capabilities
DXR is a great example of a product that is meeting the in-house requirements for integrated e-discovery and document reviews and yielding faster reviews with better results. It is a very efficient and cost effective system for the small to mid-sized cases (under 500gb of data) facing myriad requirements to respond to discovery requests. It can also be very helpful to legal teams handling the massive documents related to bankruptcy proceedings, corporate restructurings, business transactions and much more.
DXR was built from the ground up for ease of use by the firm and by in-house counsel to do discovery and document reviews. It is being used by some of the top 25 firms in the country as well as government agencies.
DXR provides litigation support managers the flexibility and state-of-the-art search-and-tag capabilities needed to cut down on the amount of time it takes to do the document review. It allows for more efficient organization and understanding of the documents that need to be reviewed. Attorneys can start the review process faster and with more control and smaller vendor bills.
With DXR, a new case can be set up in minutes. Once you have the case set up, DXR provides the flexibility needed so that if the parameters of the case change, you can easily change them.
The litigation support manager has to have the ability to review the progress of document review. DXR allows him or her to create progress reports, status reports, bill back reports and effectiveness reports, which empower him or her to manage the entire process.
The new federal rules will require the parties to agree on the form in which electronic documents are produced. A party may have to explain to the judge why information cannot be produced in the way the other side has requested. If the other side wants it in more than one form of production, it is a good candidate for cost shifting. Because DXR can take the documents in multiple forms, it can help you to be more accommodating when negotiating the e-discovery process. The form of production does not become a stumbling block when using DXR.
If you need a flexible system so that it can adapt as the requirements of projects change, DXR is the in-house solution.
Tom Strack is the Executive Vice President Business Development for OnSite E-Discovery.