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An Electronic Discovery Checklist
As a former securities litigator, Gabriela Baron recalls the old days of discovery, when she tagged paper documents with multicolored tape flags, labeled boxes lining the hallways with a Sharpie marker, and met trucks in the building's loading bay to make sure all those boxes got delivered to opposing counsel.
Then, in 2004, she became a general counsel of the electronic discovery provider Amici LLC, which was acquired by Xerox Litigation Services in 2006. These days, as vice president for business development at XLS, Baron finds herself in meetings with associates who can't even imagine that's how discovery got done on massive cases. "They're like, 'You were in the loading bay with the boxes?' "
Indeed, a lot has changed since what Baron calls the "dark ages" of e-discovery—and not just the shift from paper to electronics. "Back then," she says, "corporations were the ones most in the dark" about how e-discovery worked. Now, it's legal departments—not law firms—that hire providers. Baron estimates that she spends 90 percent of her time working with corporations, and only about 10 percent with law firms.
What follows is a short list of the things she says in-house counsel need to know.
1. Analytics matters
Because, in short, "the volumes of data keep going up," says Baron. But it's not just that the volume is increasing, it's that the forms of media involved are getting broader, including instant messages, audio messages, text messages, and recordings of conference calls. Attorneys "still need to find the proverbial needle in a haystack, and it's getting harder and harder to find it," says Baron.
2. Know what's on the market
This may sound obvious, but familiarity with the latest e-discovery tools has an impact on your legal spend. If you don't know what "near-duplicate detection" is, or that email analytics tools can be used to assess communication trends between people, now would be a good time to brush up. "This market is changing very quickly, and the availability of these tools has an enormous cost and resource impact for these companies," she says.
3. Machines won't hurt you
Baron doesn't hesitate to name the biggest trend of the past year: technology-assisted review (TAR). This is what Baron calls "document prioritization": Using a sample of, say, 10,000 documents, you're teaching a computer program which documents to flag in a pool of 1 million. And while some may portray this as machines taking over the world, Baron's interpretation is machines "assisted" and "instructed" by humans.?In other words, lawyers aren't getting replaced by computers. "There will always be a role for old-fashioned legal review," says Baron. "You're still going to need that human intuition, [as in] 'What's the value of this document?' " But if you're not adaptive and open to TAR, you won't be able to manage the volume of data coming at you.
4. Ask your e-discovery provider about security
When selecting a provider, ask about the platform's ability to handle multiple users. Is there a maximum? How many different constituent groups can you have? Then you want to learn how a user's access to documents and tools can be restricted. An expert witness, for example, might only need access to 25 pages rather than an entire pool of documents.?In this era of open Internet access, it's also important to ask where users can access data. "You don't want them sitting in a Starbucks or at a train station reviewing confidential data," Baron says. "You want to be able to say, 'These are the permissible IP addresses you can log on to the system from.' "
5. Don't forget about metadata
The biggest challenge of the past two years has been expanded metadata fields. Take a single email, for instance. The standard fields—the ones we're most familiar with—are "to," "from," "cc," "bcc," "subject," and "date." But an expanded metadata field is one that is particular to a specific client—an extra little something. A company may give its employees the ability to self-encrypt emails. That function, in turn, generates an extra field. But here's the rub: If your e-discovery software doesn't know to search for that field, an encrypted email won't show up in an analysis. The solution is to obtain the information from the client in order to search for that field and use the password to unlock the email.
6. Your next challenge may be video
"Video is really hot," Baron says. Think of all the employee training videos that companies make available via the Web. In a case involving allegations of wrongful insurance sales practices, you may want to hone in on sales videos about a particular type of policy. Another good example is deposition videos. You may want to catch all witnesses' references to "Mary Smith," whether she's referred to as "Mary," "Miss Smith," or a nickname.
Beyond the new technology, there's one thing clients always want, no matter what the tool: speed. After all, Baron notes, "time is money."