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By Dennis Kennedy and George Socha
November 2004
Dennis Kennedy (DK): Part of the difficulty lawyers who are new to e-discovery have is simply getting a grip on what e-discovery actually means, especially when different people use the term to refer to different aspects of the process. Someone who was researching the electronic discovery "market" recently asked me about the number of areas that constitute e-discovery. I came up with eight different areas. If I hadn't combined a few or tried a little harder, the number would have been even greater. George, I know that you think it makes good sense to think of e-discovery as a process.
George Socha (GS): I agree that electronic discovery should be viewed as a process. Dennis breaks it down into eight steps, but one could easily regroup Dennis's steps differently or add a few more. The important thing is to view this as a process on works through, not simply as a product one receives or a tool one uses.
DK: Let's break the e-discovery process down into its components. As I mentioned, my eight step approach is one way of doing so. Others may combine or separate the various steps. You will also want to consider the role of the lawyer in each step. I call the first step the "Assessment" step. It's an obvious step, but, given that many lawyers either try to avoid electronic discovery completely or are more or less pushed into it, it's a step that does not receive enough attention these days. You, or someone else with experience and expertise, must look at and consider the appropriateness, scope, approach and direction of e-discovery in your case, all within the context of all of the other discovery that will be required. In short, you must make sure that electronic materials become another item on your outline or checklist for discovery.
GS: Discovery is about finding information using a set of formal, structure mechanisms. You can think of this in terms of where the information resides and how you might get the information: in someone's head (preliminary conferences, interrogatories, deposition, requests for admission); as part of a physical object (preliminary conferences, request for inspection); on paper (preliminary conferences and requests for production of documents, but also depositions, interrogatories, and requests for admission); and in electronic form (preliminary conferences and requests for production of documents, but also depositions, interrogatories, requests for admission, and requests for inspection). Dennis's assessment stage is the time to make the first call on which of these areas are likely to matter in this case. Assessment needs to begin early, but it also should continue throughout the case.
DK: Assessment leads naturally into the second step, "Project Management." E-discovery today is going to be a team game. Your normal litigation team is likely to add outside experts, vendors and service providers to your core group of associates and paralegals. E-discovery places a premium on a litigator's people and project management skills, which may not be your strengths. We see that as e-discovery teams are assembled, someone other than the lead litigator may very well manage the project on a day-to-day basis and even assemble the team members. Because you probably will not find any e-discovery provider who handles every aspect of e-discovery, you may well rely on your computer forensics person, software vendor or other consultant to put together a good team to work on your case. You will probably not have the experience or expertise to do that on your own, at least with any confidence. Frankly, I see consultants like George playing a growing role in project management.
GS: I don't think of project management as a step in electronic discovery so much as parallel process - and a very important one at that. Sound project management is a key to success at each step in the electronic discovery process. Consistent effective management across all the steps will go a long way towards assuring a successful electronic discovery project.
DK: E-discovery reminds me of something management guru Tom Peters has said about the " Hollywood model" of project teams. Much as in the production of movies, you will have independent experts assemble and re-assemble into teams for different projects based on different needs and required skill-sets. Some may work together on a regular basis, much like a great director and his or her cinematographer, but others may work together only every now and then. The idea is to assemble the right team for the right project, based on their experience of working together.
GS: I often use the analogy to a general contractor and subs. Someone has to oversee the process, using his or her own people and systems where appropriate, using those of others where that makes more sense.
DK: The third step takes us to a traditional component of e-discovery, "Computer Forensics." Forensics is what many people think about when they consider e-discovery. Forensics involves the detective and technical skills and tools to find information, recover data, establish the chain of custody and the like. In one sense, it's an esoteric area where the practitioners maintain their secrets and speak in secret languages like a form of priesthood. In another sense, it's an area where yesterday's network integrator is frequently hanging out a shingle as a "forensicist." You have to be careful.
GS: Forensics is both a specific discipline and, at the same time, a wide open field. While not every matter calls for the deployment of computer forensics expertise, in every matter the question arises of whether computer forensics is appropriate. Factors to be considered include the magnitude of the matter; the likely sources of information to be preserved, collected, processed, reviewed and produced; the need for the particular values offered by experts well-versed in the practice of computer forensics, such as sound chain of custody; and the extent to which using computer forensics might actually be the most cost-effective means of gathering information.
DK: It's difficult to imagine an e-discovery scenario that will not involve a computer forensics expert. Although many people see the role of the forensics expert as the discoverer of hidden or deleted data, I think that they play more valuable roles in helping you assess the richest discovery targets and ensuring that evidence is properly handled.
GS: Actually, in many situations the use of computer forensics expert may be overkill. For example, if all that needs to be done is the exchange of expert witnesses' Excel and Access files, computer forensics does not come into play. I agree, however, the good forensics experts can be a valuable addition to the team to help with issues such as determining where information might be located and how best to collect it.
DK: The fourth step is "Conversion and Storage." The other party is not going to be handing you their network server with licenses for each of their programs. Instead, the other party will be grudgingly giving you as little as possible, in a way that requires them to do as little work as possible. As a result, you will either get data in its native format (as email files, Word documents, PDFs, database files, etc.) or in some form of "universal" format, such as text files or comma-delimited files. In either event, you will always have an issue of how you will store that data. In most cases, you are also going to have an issue of how you handle native files or convert files to formats you can work with.
GS: It behooves the parties to begin addressing these issues as early as possible in the litigation. Determining acceptable collection and storage procedures as well as acceptable exchange formats can save all the parties substantial sums of money as well as considerable headaches.
DK: You see a wide variety of approaches today. There is a good argument to be made for the Application Service Provider ("ASP") model. An ASP is a third party who stores your information on its server and makes the information fully available to you over the Internet by means of your browser. The benefits are that you do not have to purchase and maintain hardware and software, the ASP takes care of security, backup and related matters, the ASP will likely provide significant search and management tools, and everyone on your team can access the data over the Internet from anywhere. You will want to acquaint yourself with the wide variety of options now available, especially in the area of software and services that allow you to work with files in their native formats or to convert to PDFs or other formats with which you are familiar. There are important implications in each approach that you must consider.
GS: Often the ASP model makes the most sense during the first stages of working with electronic information gathered during discovery. Many of the ASP solutions offered today focus on the initial reviews for relevance and privilege. As one gets farther into the lawsuit, however, ASP approaches can become problematic, in part because they are not necessarily designed with an eye toward support activities such as deposition preparation and in part because they often fail when there is a need to have the information locally, as may be the case during client meetings, depositions, hearings and trial.
DK: The fifth step grows naturally out of the previous step and I call it "Records Management." Storage and conversion simply make the data available to you for your work. Depending on the amount of data that you have, the number of people who will be accessing it, and the safeguards and other procedures you will require, you may find that you need involve a vendor or service with expertise in managing huge databases or other collections of data on an ongoing basis. I'm talking about the day-to-day management of databases and network storage, backup and the like. With luck, your conversion and storage provider will also be the one who can handle ongoing records management. However, especially in cases involving huge amounts of data, you may find that the provider who could handle forensics and conversion simply does not have the facilities or personnel to handle ongoing records management.
GS: One might argue that records management (as in a client's records management) is one of the very first stages to electronic discovery, but that is a discussion for another day. Records management as defined by Dennis should be an integral part of what one does with electronic information being stored and worked with in any ASP solution, as well as in any solution you run on your own network or even your own PC.
DK: I call the sixth step "Search." Search is another of the steps that people traditionally picture when they think about e-discovery. As opposed to records management, which involves routine database management, search often involves the use of the most sophisticated and powerful search tools we have yet invented. Names like Attenex, Recommind, DolphinSearch and others come to mind in this space. Visualization, artificial intelligence, contextual searching, machine learning and other terms also get thrown around. The key point is that at this step you are looking to dig into the electronic data that you have and find out what is there. You might use simple search tools, look through directories by hand or use one or more of the sophisticated tools. It will depend on the amount of data that you have, what you are looking for, the potential ability of search programs to find data or patterns that humans might overlook, and a variety of other factors, not the least of which will be your budget.
GS: Search is a rapidly changing area and, I suspect, one of the ones that is most prone to be misunderstood. This is an area where craft matters greatly. Having access to a search tool, or better yet a range of tools, is a necessary starting point. But making good use of those tools calls for a level of expertise that few attorneys can truly claim to have. For example, how many of you gentle readers can successfully formulate a LEFT JOIN in SQL?
DK: I do not want to underplay how cool some of these tools are. Some of them reflect cutting edge technology and can do amazing things. You will need to decide if they are appropriate in your case and for your budget, but you owe it to yourself to see what these tools can do. I've seen examples of each of the three companies I mentioned that have truly amazed me.
GS: One thing to keep in mind is that some of solutions such as the ones mentioned by Dennis above are tools sold to end users, others consist of services delivered by a vendor using tools it developed internally, and yet others are services provided by vendors deploying tools created by others. None of these three approaches is inherently superior but they definitely are different and those differences should be considered when choosing among them.
DK: The seventh step is "Bringing E-Discovery into Your Standard Litigation Management Tools." No matter how sophisticated or simple your approach is, at a certain point you want to incorporate your e-discovery work back into your standard litigation management tools. Your goal is ultimately to use your e-discovery results effectively in handling your case. If you use CaseMap, Summation or any other litigation software tools, you will want to bring your e-discovery materials into those systems exactly as you would with your paper discovery. The good news is that electronic data ports very easily into these tools. CaseMap, in particular, has bridges and connections with many of the e-discovery tools.
GS: Agreed, with this caveat. Increasingly, we are going to see electronic discovery tools that strive to become your standard litigation management tool as well. Consumers of these tools should keep an open mind as they evaluate the merits and shortcomings of the tools they traditionally have used at this stage and compare those with the newcomers.
DK: The eighth step is "Using E-Discovery for Trial Presentation." Do not underestimate the potential benefits of the use of electronic data. Once we get information in a digital format, it becomes easy to use it in a variety of ways. E-discovery materials may be easily incorporated into PowerPoint slides or used in connection with the specialized trial presentation software. It would be a shame, in my opinion, to invest in the e-discovery process and neglect to use the electronic data that you have to prepare compelling presentation materials for the judge and jury.
GS: Don't forget that the best use of electronic data at a hearing or a trial might be in its native form. For example, the right witness can explain the work done with an Excel spreadsheet much more effectively with the actual spreadsheet file display on monitors before the jurors, then by trying to walk through printouts of the spreadsheet.
DK: Let's step back and look at this process. As a litigator, you need to know at least a little bit about each step to understand its importance and what may be involved. Each step could easily involve more than one vendor, consultant or service provider. While you see some overlap in expertise for each step, you will probably not be able to go to one shop and order up the whole process. You will, however, want to take advantage of the experience, expertise and, perhaps most important, connections of the providers you do use to create the appropriate team for your case. In some cases, you might be able to lead the team in a meaningful sense. In some small cases, you may find a computer forensics expert who can lead and handle the whole process. In other cases, a vendor or consultant may put together a package of "partners." In huge cases, you may have to find a project manager who puts the team together for you. In all cases, your job will be to learn as much as you can, asking all the questions you can, so that you can be prepared as we increasingly and inevitably move to a world where e-discovery is the rule, not the exception. No matter what your approach is, it is vital that the lawyer's judgment be exercised in each step of the process.
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