E-Discovery – The Endgame is Production

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01Mar2009

E-Discovery – The Endgame is Production

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CourtroomThere are a lot of lessons to be learned about e-discovery from the many court cases that have been affected one way or another by the ability to or the failure to produce documents during the legal process.

Take the case of Legaretta v. AstraZeneca. When defendant AstraZeneca produced documents for opposing counsel to review, it did not include searchable metadata on the millions of documents. In fact, it included TIFF files that ran to tens of thousands of pages each; some documents were so large that only high-end workstations could open them; and — the crowning glory — there were no page breaks in nearly 4 million pages out of 10 million documents.

Ultimately the court dismissed the case, although the judge complained bitterly about the defendant’s poor production practices. Many other litigants are not so lucky.

Production can seem like the poor stepchild of the e-discovery process. Earlier steps like collection and review directly impact the company. But once the massive body of produced work leaves their premises then it is no longer the company’s problem — it’s the opposing counsel’s problem. (They asked for this information, and they got it. So there.) In fact, attorneys have been known to use massive production as an arrow in their strategic arsenal. However, courts are not looking favorably on this practice anymore and the risks of poor document production are increasing.

The problem is exacerbated by electronic production. Opposing counsel and the courts demand native formats, searchable metadata, and manageable file sizes. Meanwhile, defendants are aware that many eyes — not all of them friendly — will be looking at sensitive documents. Printed documents can be physically redacted and scanned for electronic production, but documents in native formats can make this a much harder task.

Laptop Security

Document security should be high priority or else opposing eyes might have access  to sensitive information.

There is also the large question of security. When paper production ran to thousands of pages it was a daunting task to review, and few people other than the review team saw it. But with electronic results and searchable metadata, it becomes much easier for opposing reviewers — including opposing counsel, litigation support specialists, and third-party outsourcers — to comb through produced documents. These eyes are not friendly, and without document protection many of them will be privy to highly sensitive information.

Attorneys, of course, will argue relevance or attorney/client privilege in an effort to protect discovered information, and this will always be a valuable strategy. However, it is not enough given the volume and sensitivity of documents that must legitimately undergo opposing counsel’s review. This is where e-discovery tools once again prove invaluable. Being able to produce documents and files in native format and in manageable sizes are common capabilities, but others include security-based features. For example, a production tool can grant or deny document access based on assigned user rights, or can block attempts to screen-capture, copy, or print documents outside of approved court production. Another security tool is redaction search, where the e-discovery application only delivers relevant sections of sensitive documents for viewing.

In the opinion of the Taneja Group, evolving e-discovery technologies are key tools for managing today’s complex litigation workflow. Legal expertise will always be a crucial component in the e-discovery process, but good data retention and new technologies make e-discovery possible even with today’s huge data volumes. The plain truth is that attorneys and IT need each other and e-discovery technology to 1) locate all sources of potentially relevant information, 2) use auditable classification tools, 3) apply secure litigation holds, 4) analyze and present result sets for review, and 5) produce final results in viewable formats.

With manual discovery costs averaging $2,000 per gigabyte, this figure easily balloons to hundreds of thousands or millions of dollars. But when attorneys and IT join forces to adopt good data retention, e-discovery technology and legal expertise, companies can deeply slash this figure to a fraction of its original cost. These potential savings are tremendous and present compelling ROI even in the face of a very challenging economy.

Given the much smaller amounts of data companies had to worry about in the past, simply throwing more people at the problem may have been a decent strategy then. But terabytes and petabytes of data have completely transformed the game, and there is no going back. The result is a sea change in traditional discovery methodology that makes e-discovery a fact of legal life. Manual e-discovery procedures are sadly inadequate in the light of this brave new world. Embrace the change and succeed — deny it and fail. There really is no other way.

About the Author:
Christine Taylor is an analyst with Taneja Group , which provides research and analysis to the storage, server, and knowledge management industries.

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