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A client of Hunton & Williams, one of the 50 largest law firms in the United States, was faced with a seemingly insurmountable antitrust “second request” from the Department of Justice that required the review of approximately 1.1 million pages in 14 days. After exploring its options, Hunton & Williams decided the most effective approach was using an external supplier to convert documents into a common digital format and to load the converted documents into a Web-based review site that the legal team could easily access. The application service provider (ASP) chosen for the task created an online review site in three days. All 1.1 million pages were converted and posted to the site within six days. Because the review site was Web-based, 40 lawyers in four separate offices were able to participate on the review team. Each team member was able to review approximately three times the number of pages per hour compared with PC-based litigation support software � primarily due to faster page loading and document indexing speeds, and the ASP’s custom online review tools. The Hunton & Williams client met its deadlines and produced more than 220,000 pages for the DOJ out of the 1.1 million total documents reviewed. But what exactly is a “Web-based review site,” often called an “online repository”? Is it right for every case and law firm? Are some ASPs better than others? The answers require a little background. Document review typically includes aggregation of documents, culling, de-duplication, conversion to a common file format, document loading, document review, and, finally, production of the responsive document set. The aggregation, culling, de-duplication, and conversion steps are typically termed electronic discovery. Next, online review includes the creation of the Web-based review site, the review by the legal team, and the final production of documents. Before the introduction of the first online repository in 1998, reviews were either paper-based or used PC-based litigation support software. Today, paper-based review is practical only for small cases because it is more prone to errors, such as misplaced documents, and can be extremely cumbersome when many reviewers and documents are involved. PC-based applications work well for small to midsize cases. Yet for cases involving more than a million document pages, these systems are too slow. They have few tools for sharing documents across different locations, making them impractical for dispersed teams. Desktop systems also require a software license for each reviewer, adding costs that cannot be directly passed on to a client. This brings us to the growing challenge of mega-cases and antitrust second requests. Mega-cases are those with more than a million pages for review. In the last five years, mega-cases have become commonplace, according to leading law firms and litigation support vendors. In some cases, document collections have ballooned to more than 50 million pages � approximately a terabyte of data, or about 20,000 banker boxes. This astonishing growth is due to the rapid increase in the volume of electronic documents. In the research report “How Much Information? 2003,” the analyst firm International Data Corp. estimates that 31 billion person-to-person e-mails were sent each day in 2002, and that number is expected to increase to 60 billion per day by 2006. In “Compliance Issues Facing Business Today,” Online Security, a company that investigates high-tech crimes and cybercrimes, reports that recent studies show about 80 percent of all corporate information is now digital, and 93 percent of all new corporate information is created in digital form. The growth of electronic documents has also had an impact on antitrust second requests, requests for additional information by the Federal Trade Commission or the DOJ from the parties to a proposed merger or acquisition. These requests may not involve mega-case numbers of documents, but the short time frames involved place a costly burden on legal teams. The challenge for most firms is to find the resources, both human and technical, to review and produce the documents quickly enough to meet the looming deadline. ENTER THE ONLINE REPOSITORY When an organization’s IT infrastructure cannot handle the demands of mega-cases and high-volume second requests, an online repository may be the best option. Top-quality online repository ASPs have expertise in both the online review process and the various technologies, such as data security and storage, required to create a secure and reliable Web-based service. The vendor owns the technology, so law firms don’t need to invest in their own technology or hire expensive IT employees or consultants. Most ASPs offer their services on a pay-as-you-go model, enabling service costs to be easily billed back to clients. A review site can usually be ready for use in a matter of days, and new reviewers from any geographic location can be added in a matter of minutes, requiring only a PC with Internet access. The legal industry, historically slow to adopt new technologies, is increasingly benefiting from a variety of Web-based solutions for online meetings, recruiting, payroll, and collaboration. Maturing applications, increased network speeds, improved reliability and security, and a successful track record have all contributed to growing confidence within the legal industry. For litigation, online repositories are most effective when: •�The document review set is greater than a million pages. •�The document review set is less than a million pages, but turnaround time is tight, requiring a large review team. •�The review team is geographically dispersed. •�The litigation involves multiple parties such as multidistrict litigation or joint defense groups. •�A company faces multiple related cases involving similar document sets. KEY CONSIDERATIONS What should a law firm consider when it evaluates ASPs offering an online repository? 1. Scalability and reliability. Scalability includes the ability to support a sufficient number of documents and reviewers. To offer scalability, the ASP must provide a combination of databases, software, and network hardware designed for expandability. Reliability is measured by service uptime � the percent of time the service is fully available for use. The ASP should guarantee at least 99.5 percent uptime. 2. Document management tools. The solution should offer comprehensive document management tools, like searches and status reports, that can be applied to the entire document set or to document subsets. These tools can prove useful in organizing the review by such criteria as topic, priority, review location, or document source. Features typically required in a mega-case online repository include: •�A fully customizable and searchable file folder system. •�Multiple search methods, such as keyword and Boolean searches. •�The ability to remove duplicate documents. •�Easy-to-access status reports on a document or multiple documents 3. Review tools. When reviewing documents, reviewers should see both the full text of the document and the metadata (such as the source and creation date). They should also have access to a coding system that lets them designate documents based on such items as issues or witnesses. It should also be easy to add annotations or redactions to documents, and an audit trail should be created automatically. 4. Reporting capabilities. To enable effective project management, a mega-case review requires insight into such statistics as overall review progress and productivity of individual reviewers. The reporting tools should be flexible and include a variety of sorting and formatting controls as well as the ability to access reports online or download them to a spreadsheet. 5. Multi-case capabilities. Many companies and their law firms must frequently produce similar document sets for multiple, related cases in situations such as class action opt-outs or product liability litigation. Today, these related cases are commonly handled separately for each jurisdiction or case, leading to significant inconsistencies and unnecessary expense. Corporations facing multi-case litigation need to be able to use a copy of a previous document set as the basis for a new case. An effective solution would likewise provide tools for searching across all cases, reporting inconsistencies, and creating a production history report for each document. 6. Team collaboration. Team collaboration tools, such as an online team calendar, online directory, and automated e-mails announcing changes to the site, ensure that the team stays informed and up to date. 7. Security. Data security is critical. For situations in which multiple parties use the same data set, each with different access needs, administrators should be able to limit and control access to documents at the database, folder, document, and field levels � as well as by individual user or such user groups as attorneys, expert witnesses, or co-counsel. State-of-the-art network security, along with virus checking, should also be required. 8. Electronic discovery. Electronic discovery is the process of converting all documents to a common digital form before they can be placed in the online repository. Many online repository ASPs offer this service, which can streamline work flow and cut costs. When evaluating such a service, many of the considerations are similar to those for online review: reliability of the system, the ability to handle the required number of documents in the required time frame, and an efficient work flow. In addition, the service should support all common file types and media formats and should be able to remove duplicate documents and identify problem documents. The current trend toward an ever-growing number of documents will only accelerate. Law firms determined to stay competitive must adapt, and large enterprises have too much at risk not to be prepared for mega-case, multicase, and second request matters. Today’s online repositories can handle even the most demanding litigation challenges. When internal resources are not up to the challenge, organizations should consider the productivity and pay-as-you-go benefits of an ASP. Christopher Kruse is president and CEO of CaseCentral Inc., which offers electronic discovery and litigation management. He can be reached at (415) 989-2300 or at [email protected].

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