E-Discovery: New Federal Rules Require A Proactive Strategy

Wake Up To E-Discovery

Your strategic reverie has just been shattered by an e-mail from the legal department saying you'll be teaming on a request for proposals for e-discovery vendors to be sent out next week, with final selection in short order. What should you look for in an e-discovery product? And what should you look for in a vendor?

Core e-discovery products, such as those from Attenex and Stratify, are all about enabling IT to build a reliable database from targeted data sources. This database enables searching and analysis of documents related to the discovery request. Ancillary products may focus on e-mail systems, backup media restoration, or traditional litigation support.

Full-service e-discovery vendors, such as LexisNexis Applied Discovery and Kroll Litigation Consulting & Forensics, attempt to provide everything you need, including on-site professional services staffing. Forensics products, such as Guidance Software's Encase, typically come into play only when a security, intentional data destruction, or obfuscation incident requires deep analysis.

Search accuracy is important for two reasons. First, it's critical to produce relevant documents; failure here can lead to sanctions. Second, improved search can lower the cost of e-discovery. Search and analysis apps churn out documents that are potentially relevant and, more important, potentially protected by attorney-client or other privileges. Nonrelevant or privileged documents need to be flagged and not disclosed to the opposing party. Review of all documents identified by an e-discovery product must still be performed by an individual, typically an attorney. Therefore, reducing the time required for review through better search capabilities largely determines the total cost of a discovery response.

More advanced methodologies are emerging. For example, "concept searching" promises to discover documents pertaining to the concept sought but containing terms different from those used in typical documents that fit the parameters of the discovery request. While such methods remain more of a curiosity, some industry analysts expect them to gain popularity if and when they're approved by the various organizations overseeing the development and standardization of the e-discovery industry, such as the nonprofit Sedona Conference.

Detecting all relevant documents is only half the game. Providing context for making sense of a massive data set is also critical. As always, good visualization tools are priceless. You can try such a tool online by digging through 200,000 e-mail messages from Enron senior management in a database released to the public in 2003 by the Federal Energy Regulatory Commission (enron.trampolinesystems.com). In this class of tool, some products provide features to "discover" relationships among far-flung parties.

A few niche players inhabit the e-discovery marketplace, including tape-restoration companies offering high-speed services for legacy and modern backup platforms, and imaging-oriented services that convert large volumes of electronic or scanned paper documents into TIFF images, the standard preferred by legal customers. With vendors streaming into the e-discovery field, competition in the imaging market has halved the standard 25-cents-per-page rate for paper-to-TIFF conversion. Watch for specialized companies to merge or be acquired by larger players.

Evaluating a potential partner is just as crucial as ensuring that its product suits your requirements. Long-term health and financial stability are a must, as a lawsuit can easily stretch to three or more years. Consider entering into a code escrow agreement to enable continuity with a product should the vendor fail to withstand the upcoming market shakeout. Look for vendors that understand the technology as well as the law, as one without the other will leave an insurmountable gap. Also, evaluate the product or service delivery method--standalone, hosted, or hybrid--and ensure that it meets the workflow and availability requirements of both the IT and legal departments.

Investigate the professional services offerings of large product vendors, as well as e-discovery service vendors such as law firms that use a third-party product. While deploying and running products in-house can reduce costs, being able to rely on specialized technical expertise at crunch time provides an invaluable fallback. E-discovery requests can take on lives of their own, even when managed by experienced legal teams. It may be worth the price premium to ramp up using the resources of your vendor rather than swamping your internal staff and risking an insufficient response, not to mention endangering ongoing business operations. Finally, ensure that your vendor has experience in the courtroom, as its testimony may be necessary at a trial.

Patrick Mueller, CISSP, is finishing a law degree and a master's degree in public affairs and will join the privacy compliance practice at Wildman, Harrold, Allen, & Dixon. Write to him at [email protected].

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