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Electronic documents and e-mail have forever changed the discovery process. No longer can an associate go into a defendant’s office, interview a few employees, copy several file folders, and take a few bankers’ boxes of documents away to review. Today, even the simplest case can involve 20 gigabytes of electronic documents to review � the equivalent of more than 600 bankers’ boxes. This explosion of information and information sources significantly impacts the core problem of electronic discovery: proportionality. What is the problem of proportionality? Given the cost and difficulty of dealing with electronic documents in the volumes and varieties seen today, how do you keep the discovery effort in proportion to the needs of the case? For example, a case valued at $100,000 could easily exceed $5 million in expenses if an unfocused document collection returned more than one terabyte of information to review. Despite new discovery challenges, the purpose of civil procedure remains the same: just, speedy, and inexpensive resolution of the case. Corporations and their law firms need new methods for assessing the discovery effort early to prevent wasteful and unnecessary expenses. While no two cases are the same, some common factors can provide valuable insight early on in your assessment to help craft a sound discovery strategy. A starting point for evaluating a case begins with analysis of the six dimensions of proportionality: •�Value � What is the value of the case? •�Size � How much data will be collected? •�Collection � How difficult is the document preservation and collection effort? •�Complexity � How complex is the matter? •�Production � What are the production requirements? •�Time � How quickly is the first production required? VALUE FIRST Value depends not only on the dollar value of the case should it be won or lost, but also the importance of the issues to the respective litigating parties. If the case is lost, how many additional cases might be filed with the same underlying issues? The importance of the issues may take higher priority if they dramatically impact a company or industry far beyond the case’s immediate dollar value. Size typically is determined by the number of custodians, the time frame in question, and the types of information to be collected. Documents can be collected from “live” systems, from archives, from disk images created by forensic tools, from document or records management systems, or from backup tapes. Until the mix of file types is known through total acquisition or sampling, it is very difficult to estimate the amount of material an attorney will have to review. The collection scale ranges between a focused and unfocused document collection. Litigators must be clear about the process for identifying relevant custodians and sources of information. The sooner custodians are identified and documents collected from relevant periods of time, the less opportunity there will be for preservation problems due to deleted or modified documents. Along with the volume of documents to be collected, there is the dimension of case complexity. Complexity can be affected by several factors, including the number of issues in dispute, amount of redaction, and involvement of multiple defendants and therefore multiple law firms. Finally, changes in the legal climate like the potential federal rules changes for electronic discovery add to the complexity for cases where discovery takes place over several years. Production involves understanding how documents will be produced to other parties and in what form. If documents are produced on paper, a large amount of time is required to print and deliver thousands of boxes of documents. Also, logs for redacting and privilege are often part of the production set. Early on, the litigation support team must determine whether a single production or rolling document productions will occur and make sure they have an audit trail and related controls in place. The time required to review and produce documents has an overwhelming influence on the decision of what tools and processes to use. The shorter the time frame, the more-sophisticated tools and processes are needed. For small cases, the traditional review technique of an attorney reviewer using examples of relevant and irrelevant documents to make judgments page by page can be effective. For medium-sized cases, a visual clustering of related documents speeds the reviewer’s ability to distinguish relevant from irrelevant documents. In large cases, though, an expert translates the request for production and examples of responsive documents into criteria for what would constitute a responsive document. Those results are further analyzed and can be organized using the visual clustering tools as in the medium-sized cases. RIGHT-SIZING ELECTRONIC DISCOVERY To aid in establishing a budget and strategy, the discovery team should evaluate the six dimensions of proportionality. A simple and effective way to do this is to assign a value on a scale of 1 to 5 representing where your case fits along each dimension. The higher the sum of these values, the higher the difficulty and cost of the discovery process likely will be. Scoring the electronic discovery effort at the onset of each matter provides the discovery team with a simple but effective method of comparing case experience. As new matters arise, the discovery team can use past experience and “scores” to get an initial idea of what may be involved in the discovery effort. While “mileage may vary” between different industries and matters, a consistent framework enables both clients and law firms to better learn from and leverage past experience. Scoring promotes a common language and shared understanding that lends itself to predictability and better results. FIGHTING TECH WITH TECH It’s essential to make your electronic discovery approach transparent to all parties. Increasingly, transparency means safety. Complaining about the burden of electronic discovery is no longer an acceptable position to take. While technology has created new challenges for discovery, it has also rendered new solutions that allow corporations and their law firms to fight technology with technology. Evaluating proportionality by using scores can help identify technology considerations that save your team time while reducing the expense of electronic discovery and document review. For high-scoring matters: •�Keep all documents in their native format as long as possible. Converting each and every document to paper or ePaper (such as TIF or PDF) is prohibitively expensive and time-consuming. •�Use technology for programmatic culling through exact and near de-duplication. Remember: A single gigabyte can yield tens of thousands of documents for review. New technology solutions can help reduce the amount of information to be reviewed. •�Take advantage of the many clues as to the organization of the data, ranging from the metadata associated with an e-mail message or a document to the folders on the custodian’s hard drive or e-mail system. •�Involve a technology-oriented document analyst who uses a criteria-based approach to create a defensible process that includes research and sampling as well as testing and validation of the results for positives, negatives, false positives, and false negatives. For mid- to high-scoring matters or the review of documents after paring in very large matters: •�Use computing power to improve review productivity. Group or cluster related documents using document analytics to help attorneys more quickly grasp the context of a group of documents and stay focused. •�Use document review tools that offer multiple contexts and visualizations of the collection. For example, concept mapping provides reviewers with a high-level orientation to thousands of documents along with several ways to examine the details of a document or group of documents on demand. For low-scoring matters: •�Pay close attention to the key sources of data. Make sure that documents are collected from all of the relevant custodians. •�Understand that traditional methods of collection and review that incorporate the printing of electronic documents and a paper review may be cost-effective if time permits. •�Consider where the technology of higher-scoring matters can be employed to simplify the discovery process. In all cases, make sure the project manager has the right skills and tools. The discovery and review of thousands, often millions, of unique documents and messages is a daunting task for even the most-seasoned project manager. An audit trail that tracks each electronic document through the review process should be a key component in every matter. And how project status will be reported and communicated should also be decided early in the process. The ability to answer seemingly simple questions such as “What percentage of the document review is complete?” can be valuable in setting expectations for everyone. The rapidly increasing size and complexity of electronic discovery in litigation makes a single approach to document review impossible. Today’s litigation team needs to have a set of tools, processes, and qualified service providers to apply to the unique needs of each matter. With all of the urgency and multiple conflicting demands of a given matter, it is easy to lose sight of the principles of proportionality: the just, speedy, and inexpensive resolution of the case. Rating matters based on proportionality can help the litigation team develop better approaches early in the discovery process and make those plans transparent to all parties. Selecting an appropriate path through the dimensions � value, size, collection, complexity, production, and time � leads to higher productivity for the litigation team and lower expense for the client. Skip Walter is chief technology officer and Mike Kinnaman is vice president of marketing for the Attenex Corp., a developer of electronic document review software based in Seattle.

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