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The quantity of electronic information susceptible to discovery today dwarfs the paper-filled warehouses of only a decade ago. Until recently, small, plaintiff-oriented law firms had been hindered from reaching relevant electronic documents by the costly up-front battles that were needed to force parties with greater resources to produce such documents and the expenses of sorting through the information. But developments in the law and the evolution of legal technology are leveling the playing field between large and small firms, as well as between clients with disparate resources. Courts are scrutinizing electronic discovery requests more carefully before granting requests by responding parties to shift the cost of producing electronic documents to parties making such requests. Hence, plaintiffs and smaller firms may have wider latitude to justify requests for electronic evidence. As courts show a greater willingness to impose the costs of electronic discovery upon the parties required to produce such information, and technology provides faster and less expensive ways to sort though these documents, lawyers on both sides of the aisle are increasingly recognizing the important role electronic evidence plays in litigation. Attorneys and law firms that can manage electronic discovery in an accurate, practical and cost-effective manner gain a competitive advantage. Plaintiffs have powerful incentives to find efficient ways to parse the vast quantities of electronic information housed in corporate auspices. A key factor is the dramatic impact of e-mail in the workplace. According to a 2003 study by the Meta Group, 80 percent of business people say e-mail is more valuable than the telephone. Matt Cain, “The Survey Says: E-Mail Beats the Phone,” Meta Group Research — Client Advisory Summaries, April 22, 2003, see www.metagroup.com. The statistics are stunning. In 2000, fewer than 10 billion e-mail messages were sent per day worldwide. By 2005, the number of e-mails sent per day is projected to surpass 35 billion, according to industry analyst IDC. A recent study from the University of California, Berkeley, concluded that as much as 93 percent of corporate information today is in digital format. “How Much Information? 2003,” www.sims.berkeley.edu/research/projects/how-much-info-2003/. SMOKING GUN E-MAILS Also driving the desire for electronic discovery are the much-publicized e-mails that can make a case — such as Frank Quattrone’s e-mail to Credit Suisse First Boston staff, following notice of a grand jury subpoena, reminding them of the company’s document-destruction policy. Or the e-mail from former Salomon Smith Barney telecommunications analyst Jack Grubman, linking a research report he issued with his desire to obtain the help of Citigroup Inc.’s CEO, Sanford Weill, in obtaining admission for his daughters to an exclusive preschool. Electronic documents can be much more useful to plaintiffs than hard-copy documents. Embedded data, known as “metadata,” include information regarding when and who created a document, when revisions were made, what the revisions were, etc. The market research firm Vanson Bourne released a study indicating that even though almost all documents have been altered before their final state, 57 percent of those questioned were not aware that metadata may exist in their documents. See Stephen Shankland and Scott Ard, “Hidden text shows SCO prepped lawsuit against BofA,” CNET News.com, March 4, 2004, http://news.com.com/Hidden+text+shows+SCO+prepped+lawsuit+against+BofA/2100-7344_3-5170073.html?tag=nl (citing a Vanson Bourne study, “The Cost of Sharing”). For example, the SCO Group Inc. recently filed suit against DaimlerChrysler A.G. An electronic copy of the complaint contained metadata revealing that SCO’s attorney originally had contemplated naming Bank of America as a defendant, and had gone to great lengths to build a case against the bank. See Shankland and Ard, supra. E-DISCOVERY COSTS Much of the recent attention to electronic discovery follows Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) and 216 F.R.D. 280 (S.D.N.Y. 2003). The decisions provide a detailed analysis as to how courts should weigh requests to shift the costs of electronic discovery to requesting parties. In the first of the two decisions, the defendant UBS Warburg faced an electronic discovery request from a plaintiff suing the company for gender discrimination and illegal retaliation. In its response to the electronic discovery request, UBS originally produced approximately 100 pages of e-mail. The plaintiff objected, since she herself could produce some 450 pages of e-mail. In requesting that the costs of further discovery be shifted to the plaintiff, UBS claimed it would cost more than $175,000 to extract further relevant e-mail by restoring data from backup tapes. U.S. District Judge Shira A. Scheindlin ordered UBS to produce all responsive e-mails that existed on easily searchable optical disks, or on its active servers at its own expense. In addition, the judge ordered UBS to produce e-mails from a sampling of backup tapes to determine whether further discovery should be ordered, and which party should be responsible for the costs. WIDELY CITED DECISIONS The Zubulake decisions have been widely cited within the legal community for several reasons. In the first of the two Zubulake cases, Scheindlin noted that “[c]ourts must remember that cost-shifting may effectively end discovery, especially when private parties are engaged in litigation with large corporations. As large companies increasingly move to entirely paper-free environments, the frequent use of cost-shifting will have the effect of crippling discovery … This will both undermine the ‘strong public policy favor[ing] resolving disputes on their merits,’ and may ultimately deter the filing of potentially meritorious claims.” 217 F.R.D. at 317 (quoting Pecarsky v. Galaxiworld.com Inc., 249 F.3d 167, 172 (2d Cir. 2001)). The court established a seven-part test to determine whether costs should be shifted. Two of the most important elements are the extent to which the request is specifically tailored to discover relevant information and the total cost of production compared to the amount in controversy. The Zubulake test carries a great deal of credibility. Scheindlin is recognized as a leader in this area, and has served on the discovery subcommittee of the Advisory Committee on Civil Rules. Hence, although Zubulake is not binding outside of the Southern District of New York, its recommendations can be viewed as a road map for plaintiffs to follow to create electronic discovery requests that survive the specter of cost shifting. TECHNOLOGOY SOLUTIONS The universe of discoverable electronic data continues to expand, and it has become the lawyer’s job to educate clients as to all potentially discoverable sources and types of electronic documents. But increasingly, technology solutions are offering small firms and plaintiffs with limited resources ways to take advantage of electronic information in its native format. Electronic evidence may be gleaned from office, home and laptop computers; personal digital assistants; network system drives and servers; Web sites; e-mail servers; hard, floppy and compact disks; backup tapes and optical disks; and telephone systems, cellphones and fax machines. See David K. Isom, “Electronic Discovery: New Power, New Risks,” Utah State B.J., Nov. 18, 2003. Types of discoverable information include electronic correspondence (such as e-mail, voice mail messages and instant messaging), word processing documents, spreadsheets, personal and shared calendars, computer databases and systems information (such as automatically created computer logs). See Michael P. Zweig and Mark J. Goldberg, “Electronic Discovery: A Brave New World,” Wall St. Law., July 2003, at 5. The speed with which electronic information has surpassed the primacy of paper communication has driven a corresponding need for more sophisticated tools to analyze and process this information. Not surprisingly, the market is responding. According to a recent article in the Wall Street Journal, companies across many industry sectors are increasingly turning to information-visualization software, which organizes large amounts of electronic data into interactive graphic displays, making it easier to identify key data among vast amounts of information, and make crucial connections. See Jeanette Borzo, “Business Solutions — Get the Picture: In the age of information overload, visualization software promises to cut through the clutter,” Wall St. J., Jan. 12, 2004, at R4. Organizations applying data visualization software include companies in the pharmaceutical, financial services, life insurance, software and technology sectors, as well as government agencies such as the U.S. Agriculture Department. Users apply such software to analyze large amounts of data involving sales information, chemical research, general market activities and in many other applications. In the legal arena, a handful of companies are developing a new breed of electronic discovery software known as document analytics that combines information visualization with powerful tools for culling, searching and browsing large amounts of electronic documents in their native format. These products go beyond traditional approaches, which limit users to keyword searches that often miss highly relevant information. The next generation of software sorts and maps documents by concepts, with retrieval engines that identify key concepts based on syntax and semantics. For example, a concept-based retrieval engine may identify all documents containing the word, “diamond,” but also can differentiate between those referring to baseball diamonds and those discussing engagement rings, separating the documents into relevant concept clusters. These new e-discovery solutions allow for the preservation of relationships between documents, so that reviewers can view e-mails along with their attachments such as word processing, spreadsheet and other file types. In addition, these solutions provide de-duplication capabilities that can suppress duplicate information. In combination with advanced techniques such as “near” de-duplication, which reduces the number of e-mails and presents the reviewer only the last e-mail in a message chain, de-duplication can reduce the quantity of electronic data that need to be sorted by between 30 percent and 80 percent. If and when a duplicate or near duplicate is identified as responsive, all of the duplicates are marked accordingly for production. Document analytics combines these enhanced search and organizational tools with the ability to visually map documents and clusters of documents, so viewers can see relationships at a glance, before clicking through to specific information. And because the process is managed by the software, litigators have a solid chain of evidence including a complete audit trail and reports that track each and every document through every step in the process. Taking advantage of technology that is available today, attorneys and legal staff can quickly identify which groups of documents are irrelevant and don’t require review in addition to the nonresponsive documents that once reviewed will not become part of the working set of trial preparation documents. Because this technology works with electronic documents in their native format, reviewers can identify these records up-front and reduce the costly and wasteful conversion of unnecessary files to the TIFF, PDF or HTML formats that is so common to many traditional electronic discovery approaches today. LEARNING CURVE To a great extent, the use of electronic discovery — and the rules being fashioned to meet e-discovery requests — is leveling the playing field between large and small firms. Gone are the days when large firms representing powerful corporate interests could bury the other side in boxes of paperwork. On the other hand, plaintiff attorneys are all too aware that keeping discovery costs low with the respondent depends upon carefully tailored and targeted requests. The increased use of sophisticated technology tools to identify relevant documents and to minimize unnecessary or duplicate documents has the ability to greatly reduce the costs associated with electronic discovery, for both sides. In turn, the reduction in electronic discovery costs, and ubiquity of electronic information, has led litigators to become more aware of the importance that electronic evidence plays in building and defending cases. This means that litigators must take a more active role in discovery — affirmatively ensuring that the client understands the types of documents required for discovery and where these documents are located. Large-scale litigation is becoming less of a document war, in which the side with the most resources has the advantage. With sophisticated tools to sort through the clutter, the focus of such litigation has again returned to a match of skills between the lawyers involved. Skip Walter is the chief technology officer of Attenex Corp. in Seattle. Read about how one New York court recently addressed the issue of which side bears the cost of electronic discovery.

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