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The production of huge amounts of e-mails and electronic documents for discovery in litigation, mergers and acquisitions practice and white-collar criminal proceedings has become standard. Office workers exchange 25 billion e-mails per day (David S. Bennahum, “Daemon Seed,” Wired, May 1999, at 102). An average e-mail server backup tape is capable of storing 70 gigabytes of data, which, when printed out, could equal close to 19 million pages of paper. In light of this volume, litigators are no longer surprised by the critical role electronic documents now play in lawsuits. What is surprising, however, is that 83 percent of litigators’ corporate clients have not established a protocol for handling electronic discovery requests, according to a 2000 American Bar Association survey (PricewaterhouseCoopers section of Litigation of the “American Bar Association Pulse Survey: Digital Discovery and its Importance on the Practice of Litigation.” This survey may be found at www.pwcglobal.com). And while corporate understanding lags, judicial standards are rising regarding the handling of electronic data as evidence. Recently, Magistrate Judge Jacob Hart of the U.S. District Court for the Eastern District of Pennsylvania noted that an electronic document is different from a paper document in part because electronic documents often contain “embedded” information and that every draft of an electronic document can often be recovered ( Federal Discovery News: Vol. 7, No. 1: Conference Report, Dec. 11, 2000.) In a recent commentary by Paul H. Merry in Federal Discovery News, the author describes electronic documents as a “precious judicial resource,” and advocates rule changes designed to safeguard and preserve electronic documents ( Federal Discovery News: Vol. 7, No. 1: Guest Commentary, Dec. 11, 2000). In addition, Ken Withers, research associate at the Federal Judicial Center in Washington, D.C., has written about the role of the federal judiciary in managing computer-based discovery and preventing or resolving some of the more common disputes (Kenneth J. Withers, “Computer-Based Discovery in Federal Civil Litigation,” Federal Courts Law Review; 2000 Fed. Cts. L. Rev.2, online at www.fclr.org/2000fedctslrev2.htm. The section on judicial management tools for computer-based discovery is of particular interest to counsel seeking to stay informed about the current judicial climate on this issue). These articles indicate that electronic data as evidence is an increasingly important topic for litigators, corporate counsel and the judiciary. Understanding and mastering the techniques and requirements for handling electronic data will be the key to success in meeting the increasingly strict standards of the law. While most law firms have sufficient experience to handle a paper production, few are set up internally to deal properly with electronic data. Manual processing, which includes an open, search and print approach, has several serious drawbacks when it comes to electronic data. This manual processing method is only marginally effective with more user-friendly storage media, such as a CD. And the sheer volume of the data contained on most forms of storage media could quickly cripple a law firm’s ability to manage a paper production in-house. Finally, the paper-production method fails to address many of the very aspects of the use of electronic data as evidence that the courts are concerned about. A more careful approach to handling electronic data for review and production includes converting all electronic data into images. These images provide a flexible, uniform result that can be used directly for paperless review, or printed for paper review. GOING AUTOMATIC In addition, an automated conversion process yields several useful results over and above printing alone. Counsel should consider the following when it is time to package electronic data into images for review or production: � Automation. Automation — not in-house manual handling –is the key to producing electronic data quickly, correctly and completely. It leaves less room for human error and guarantees that every file in the collection is processed in exactly the same way. This will be an important benefit when questions arise regarding the preservation of evidence. Conversely, manual handling increases the chance of data being inadvertently missed or inconsistently handled. Automation, and the technology that fuels it, can mean fewer people. If an outside expert in electronic data collection touts its ability to “staff up” to meet project deadlines, be wary. This translates into a heavily manual process. One question to ask is what a provider’s machine-to-person ratio is. This will gauge how automated the provider really is. � Experience. Data can be messy. The more data a provider has run through the process, the greater the chance that the provider has already solved the most challenging data problems. This experience means the provider spends more time actually processing data, and less time dealing with data problems that may arise. In addition, if the case contains large volumes of electronic data, it is important to work with a provider who has handled projects of similar volume. Counsel should ask for references, and resumes and bios of key personnel. This will give an indication of the likely strength, stability and sophistication of the software processes being used. � Cost. The packaging of electronic data for review and production is expensive. Since most providers offer pricing on the number of pages or images, it will be impossible to determine the exact cost of a project up front. What a provider can do is to give counsel a cost estimate based on assumptions validated by experience. For example, the industry standard of five pages per document routinely underestimates the actual number of pages (images) per file. The true cost of the project could be four to five times that standard estimate. Using real world benchmarks makes the final cost more predictable. � Turnaround Time. Often, law firms will delay starting the task of processing electronic data for review because they hope to settle or convince the court that the task is overly burdensome. By the time it gets to the point of proceeding, deadlines are looming. Consequently, rapid turnaround from a provider is an especially important qualification. Once again, thorough automation is key. One can take advantage of advances in hardware speeds and heavily automated processes that compress data-to-image conversion time by combining several operations into a single step. TIMING IS EVERYTHING Depending on the type of storage medium –back-up tapes take longer — the first delivery of electronic images for review should be received within two to three days. From then on, expect rolling deliveries, in which data is returned in segments after being converted to images. Once this rolling delivery starts, reviewers should never have to sit idle, waiting for more data. A good way to manage this process is for counsel to advise the provider on the number of pages they are equipped to review daily. Reducing the volume of material before the image conversion step is essential since it means counsel can avoid processing and reviewing files that are unlikely to lead to discoverable material. Look for a provider that offers consultation and other services for reducing the amount of materials for processing. In the long run, this will save money. For example, if a case includes back-up tapes, often it will not be necessary to restore, process and produce all of them, depending on the type and frequency of the back-up performed. Other services for volume reduction include eliminating duplicate files as well as duplicate e-mail messages, isolating and selecting individual users, eliminating files by file extension and using keyword searches. All of these services can significantly reduce the amount of data processed, decreasing total project duration and cost. A “chain of custody” requires that “the one who offers real evidence … must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence” (Black’s Law Dictionary, page 156, 6th ed. abr. 1991). This can be important with heightened judicial scrutiny. In the case of electronic data, accountability is especially difficult because what goes in is not what comes out. A provider receives a stack of storage media and produces thousands of images. How is the litigating attorney to demonstrate to the court that the standard has been met? AUDITS ARE KEY Counsel should expect to see an accounting of every single file throughout the life of the project. Auditing, in the form of written reports, should be done at every step, from the intake of the data to the final delivery, to ensure full verification. A provider’s audit report should contain the following information: name of original storage media; the number of files within each piece of storage media; the number of those files converted to image; the number of images rendered from this conversion; and a full listing of those files not converted with an explanation of why they could not be converted (for example, if they were corrupted or system files). The reports should also trace every image to its original electronic source. In addition, there should be automated steps in place to ensure that no data are altered or omitted. “[The] purpose of the chain of custody rule is to insure that the substance offered into evidence is in substantially the same condition as when it was seized.” For example, a “simple” spreadsheet or word processing document can contain a labyrinthine network of formatting elements. Headers, footers, second headers and nested sections may contain auto-update code that alters information in the document when processed. It is time-consuming, error-prone and potentially costly to ferret out these elements manually. Sophisticated automation can find them and prevent the improper alteration of documents ( United States v. Santiago, 534 F.2d 768, 769, 7th Cir. 1976, citing United States v. Brown, 482 F.2d 1226, 8th Cir. 1973). At a minimum, counsel should expect the following processes to be performed on the data: hidden columns, rows and worksheets in spreadsheets to be revealed; comments in documents to be shown; passwords to be broken on documents; and blank document pages to be eliminated. As always, the link between e-mail messages and their associated attachments should be maintained. Staying informed throughout the project’s life means no surprises. Counsel should ask their provider about real-time access to their project’s status. A reporting program should be customized for the level of control required. Furthermore, counsel should expect a client services representative to guide them through these reports on an as-needed basis. Counsel should be able to determine at any time what storage media have been shipped to the provider, how much of it has been processed, how much is left and how long the remaining data will take to be completed. Counsel should be wary of arbitrary reports that “the project is 90 percent complete.” Delving further into the project’s status allows counsel to control its scope and final cost. If counsel has chosen the paperless review method, it is important to select a provider that can deliver electronic images that integrate seamlessly into the law firm’s current review-and-produce procedure. Have the provider run test data through its system until full integration is achieved. Even under the most rigorous testing, however, counsel should also be cognizant of the fact that some kinks may only show up when real data are processed. In that event, a provider’s programming talent should be able to resolve quickly any outstanding integration issues. With an increasing amount of evidence in electronic form, counsel need to reinforce their knowledge of electronic data’s inherent complexities. Understanding that an in-house manual solution will not hold up under close scrutiny is vital. A technically advanced provider gives counsel the security necessary at a time when the judiciary is becoming more rigorous in enforcing legal requirements. Pia L. Potter is the chief operating officer of Ibis Consulting ( [email protected]), located in Providence, R.I. David Baldwin, director of technology at Ibis Consulting, provided input on technical matters, and Patricia A.M. Vinci, Ibis Consulting’s client liaison, also contributed to this article. Patricia A.M. Vinci is an attorney.

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