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Most attorneys recognize the importance of the growing body of law surrounding electronic discovery, but they lack information about the technology behind the law. The ABA recently completed a technology survey of more than 9,000 attorneys nationwide in which 94 percent of respondents said they had no e-discovery experience. Many attorneys incorrectly use the term electronic discovery as a catchall to refer to any process for reviewing documents that originated from clients’ computers. From there, the process may diverge into some combination of manual review of paper documents and electronic scanning of paper images to be reviewed in a standalone database. While this misunderstanding of electronic discovery is understandable, it hinders the development of best practices for handling electronic documents in the most efficient and advantageous manner. True e-discovery is characterized by technology that keeps electronic files in electronic form from start to finish. With this process, electronic documents are gathered from clients’ computers in many different file formats, processed to a uniform format for review (commonly PDF), and then hosted in a highly secure, Web-based database. The review team accesses the database from any PC with an Internet connection and uses a single interface to complete subsequent processes such as document review, annotations, privilege redactions, Bates numbering and categorization for production. If electronic files are reduced to paper format at any stage in the review process, the benefits of true e-discovery technology are diminished. While there is still some debate surrounding the pros and cons of the PDF and TIFF file formats for electronic discovery, it is clear that the courts favor PDF. The federal courts’ Case Management/Electronic Case Files project is being implemented in courts nationwide and requires filing of all court documents in PDF. For more information, visit www.uscourts.gov. PLAN OF ACTION Equipped with a greater understanding of the meaning of e-discovery, the next logical step is to create an action plan for putting the technology to work. � Assess e-discovery needs and comparative costs. Start by determining the volume of data the team needs to review and assessing the relative cost of using e-discovery compared with the benefits received. One of the most common complaints about e-discovery is the perceived expense. In the days of paper discovery, the “trickle effect” of costs lessened the blow of discovery expenses; paper flowed through the process for many months, with perhaps $10,000 for copying charges one month and $30,000 for scanning and coding charges another month. In contrast, an e-discovery bid typically includes all the anticipated costs for the project up front. What can seem like a large expenditure at first glance is actually much less expensive than traditional discovery processes on a per-page basis. An accurate assessment of the size and needs of the case will put the team in the best position to effectively manage project costs. � Research e-discovery technology. Consider the options for electronic document review with an eye toward the following elements of any e-discovery technology. Look for a technology service provider that offers the full array of e-discovery services, from data collection and media restoration through online review to document production. The ideal format for electronic document display is PDF. This is the most widely used format for reviewing electronic information and the only format accepted by the federal courts. The online review interface must be Web-based, intuitive and based on familiar discovery practices. If the system requires more than an hour of training, it’s not worth using. Security must include 128-bit SSL encryption, managed firewalls and advanced intrusion-detection systems. Finally, a single, client-dedicated project manager should support the legal team. Do not accept a “call center” model. Ask for references related to client service standards. � Generate support for the e-discovery initiative. The success of any e-discovery project hinges on support for implementing technology early in the review process. This backing must come from the most senior attorney involved in the case and, ideally, from the client as well. When the entire team has a vested interest in the success of the e-discovery project, all are more likely to enjoy the full benefits of the technology. � Build a relationship with a trusted service provider. Form an ongoing relationship with one service provider. This will ensure consistency in communications and protocols for the legal team and its clients. Further, it will speed the learning curve for all lawyers using the technology. Since switching from one interface to another for different projects can be confusing, all parties will get the most for their money when the skills learned in one project can be easily transferred to another. HARNESS THE POWER E-discovery in its true form is fast, cost-effective and capable of providing a strategic advantage only imagined in the paper world. Millions of pages of information can be ready for review in a matter of days instead of the months required to prepare documents for review with manual processes or scanning and coding. Rapid turnaround times allow attorneys to meet court deadlines and prepare case strategy — especially in the early stages — with the benefit of knowing what is contained in the documents. Manual review processes can cost more than $2 per page, and scanning and coding costs are usually above $1.25 per page. While per-page or per-gigabyte charges vary among service providers, the cost is almost uniformly less than 25 cents per page. These cost savings are compounded by the infrastructure savings: no specialized hardware, no user seat licenses and no increase in IT staffing to support desktop litigation support systems. GAIN A STRATEGIC ADVANTAGE Legal teams that use e-discovery technology are able to find key documents in minutes instead of weeks or months. By searching on the full text and meta data of the documents, attorneys can pinpoint critical issues very early in a case. The ability to frame the party’s claims and defenses with early knowledge of what is contained in the documents can significantly improve the resolution of the case. E-discovery technology also enables the user to locate documents immediately when new issues arise in the case. With manual review, an emerging issue could mean that the review team would have to re-search entire boxes of documents to locate key information. Even with coded databases, search functionality is limited by the keywords chosen at the outset of the case and the accuracy of the optical character recognition technology being used. The ability to search full text and meta data with true e-discovery technology allows attorneys to instantly access documents with new search terms at any point in the case. The legal team’s strategy is also well served by the ability to comply with court rulings requiring production of documents in electronic format. As courts around the country have considered the issue of whether data from computers can be produced in paper form, parties have frequently been required to produce electronically. Attorneys who capitalize on the electronic format of discovery documents throughout the discovery process are better prepared for changes as case law develops. No attorney wants to endure the lengthy process of manually reviewing documents, only to be forced by a court to retrieve and produce all the same documents in electronic format for the opposing party. For attorneys who have been waiting to put e-discovery to work in their cases, the time to do so is now. The latest technologies are more user-friendly and cost-effective than ever before. Combining sophisticated functionality with speed and accuracy, e-discovery technology can replace old, cumbersome processes with simpler, more efficient methods. The author, an attorney, is a client development representative with Applied Discovery Inc. of New York, a provider of electronic discovery services to law firms and corporations.

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