Not unlike explorers, lawyers also experience challenges in making their discoveries and within a decade firms have increasingly shunned paper-based discovery methods, in favour of electronic systems. Richard Szabo finds that ediscovery systems are capable of a lot more than just searching through documents.
Discovery can arguably represent a significant part of a legal matter. Just ten years ago a large discovery was considered to involve tens of thousands of documents, but nowadays a major discovery is considered to amount in the hundreds of thousands.
Allens Arthur Robinson director of applied legal technology Beth Patterson agrees that ediscovery is rapidly changing and there is an enormous amount of electronic data being created nowadays, particularly in emails.
Traditionally, firms would undertake paper-based discovery and this would involve dividing staff to search filing cabinets. However, nowadays firms are often dealing directly with client in-house counsel and IT departments to collect documents from their computer systems. "We helped our clients proactively prepare for ediscovery through utilising technology that searches and collects data on their IT systems. We use data maps, which allow them to quickly know where documents are, in the event of litigation," says Patterson.
Ediscovery software that firms are using
Allens uses Ringtail's Legal 2005, among others, for ediscovery, processing electronic data and reviewing. She says one of its benefits is increased efficiency for document reviewing by lawyers.
Apparently the software has saved the firm countless hours that would otherwise be spent sifting through client emails and other documents received over a period of many years, by filtering out irrelevant data. It also uses concept search process, which involves searching for relevancy rather than just keywords.
Lee Trevena of Synetek Systems says the average managing partner spends 90 minutes per week solely on managing email. However, firms can reduce this time by using Synetek's Mailrevive, which automatically indexes sent and received emails and does not require a lawyer to use folders.
"You simply look through emails with the search and discovery tool. If security is enabled then it eliminates SPAM. With Mailrevive all emails are centralised and no matter how many emails are there you can recover them from one location - it takes just a few minutes," he says.
Hesketh Henry partner Christina Bryant agrees that concept search processes can save a significant amount of time. She points to how a search that would typically take just a few seconds on the firm's iManage system, while searching through shelves could take several minutes.
Bryant says the concept search process works by linking documents with certain search criteria, such as date, document type, topics, sender or recipient. Related documents can also be linked to each other. "The ability to file and manage documents electronically reduces the time and resources required for large litigation files, enabling relatively smaller firms to handle larger litigation cases," she said.
Guidance Software assistant general counsel Albert Barsocchini believes the keyword search is still the most effective and transparent process for discovery and culling, while advanced search methods may create more hits they are most helpful when dealing with large document populations and very broad terms or clauses. "In litigation or other matters where there are broad terms, advanced search technology should be considered. But usually you do as much culling as possible using keywords and then use the advanced search," he says.
A whole lot more than pure discovery
Bryant believes that ediscovery software should not only be capable of searching for documents, rather should also be able to manage them for lawyers, clients or witnesses, and prevent duplication. "One problem is the duplication seen in email correspondence, where chains of correspondence greatly increase the volume of documents requiring discovery.
To this end, EnCase ediscovery developed by Guidance Software offers an entire package for searching, identifying, preserving, collecting and processing data. Barsocchini says the program is useful in search desktops, file shares and email servers in different locations, minimising travel time, business disruption and manpower.
"From a central location on the network you can automatically search the enterprise and collect responsive documents with one just person. Depending on the keywords used and network traffic we can collect and process up to 50 workstations in a matter of days," he said.
Patterson agrees that electronic de-duplication is generally accepted in the market and Allens utilises the MD#5 method to cull duplicates quickly and cost effectively. A relatively new area that firms are exploring is near de-duplication technology that allows grouping of similar documents, such as different versions of contracts, for lawyer review.
Mailrevive is also capable of de-duplication and can automatically encrypt and archive emails. It uses a relational search process called Deeplink, which allows for search via keyword, date, body text, attachments and file type. "Once you found a particular record, you can do a search for similar or related search in the repository. You can package them up and export them into a file format ready for case management software such as Ringtail and a range of ediscovery software," says Trevena.
It also provides backup and access to the mail server, even if the network is down. The lawyer simply logs into Mailrevive to read and send emails. The messages are then delivered once the server is back online.
Improving efficiency, addressing chain of custody
An area that Allens has improved efficiency is providing courts with documents related to a discovery via electronic means. In other words, instead of filling a room with printed documents and inviting parties to review them, lawyers simply exchange discoveries via DVD.
This is particular useful following the Australian Federal Court's new practice note 17, she says, which allows courts to take a more active role in discovery: "the proposal is parties will need to complete a pre-discovery checklist and agree on it upfront. It's a balance of flexibility; the courts will prescribe more around this area, to reduce costs."
However, issues can arise from receipt of documents in digital format. She gave an example of correspondence received from another party where macros in the documents had automatically updated the original dates to the date of download.
Patterson says electronic documents are open to the possibility of change, depending on how they are copied. Nevertheless, there are methods to prove custody in a forensic way, some of which involve Acrobat pdfs or a single-paged tif images.
Bryant says the digital format alone involves a range of new issues such as metadata, which was not a concern in paper-based discovery. This is because electronic documents also include metadata, such as creation dates, edit dates and versions, which may be very important in the context of a particular dispute but increase the overall volume of discovery.
Another difficulty is seen in matching electronic documents to the document number in a party's list. Unlike paper documents, the files are not manually stamped with the document number, instead a new method of identification must be devised.
For some of the above reasons some New Zealand lawyers still prefer to do paper-based discovery, says Bryant. There is often a reluctance to store them electronically and read them on-screen. However, this should gradually change since programs are becoming more user-friendly and search functions are improving.
What firms can gain from ediscovery software
Ediscovery can reduce the amount of storage space required. For example, a four gigabyte USB flash drive is capable of storing 100,000 emails. It can also minimise the number of staff required for routine work, such as searching for files.
Bryant agrees that electronic storage can reduce the amount of storage space required in an office, adding that it also enables lawyers to work remotely, which gives greater flexibility. "I can go home or overseas and access the database. I don't have to carry big folders or bags and that is important to me," she says.
Ediscovery systems can bring significant long-term savings to a firm. Multiple systems can be leased rather than bought outright, enabling firms to limit initial setup costs. To this end, Allens has leased multiple ediscovery programs. "It's not like one size fits all. That's why a lot of our lawyers opt for a pay-per-case charge, namely they pay for the life of the case and the system is continuously updated and upgraded at no extra charge," says Patterson.
Barsocchini says most outsourced discovery collections and processing could cost upwards of A$8,000 per custodian. Cases typically involving 50 custodians could cost as much as A$400,000. However, by purchasing EnCase, the software usually pays for itself within one or two cases depending on the size, he says.
"It offers an 80% saving on collection and processing costs. For firms that do not want to buy, we now offer a pay-per-use option, which tracks usage and allows firms to charge back costs to clients. Generally speaking, a pay-per-use staffed search for customers would cost about A$1,500 per custodian or A$75,000 for 50 custodians," he said.
Trevena, on the other hand, says outsourcing email discovery can cost firms up to A$50,000 per gigabyte, if collection and processing are included. However, Mailrevive is considerably cheaper and can be leased for monthly fee starting at A$5 per user, which would cost about A$500 per month for large firms.
Patterson, however, believes that in the long-term is more cost-effective to purchase the software. She also adds that ediscovery vendors will consolidate and this trend is likely to continue. ALB
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How to make the most of ediscovery
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