Law Practice Tips
Tools for Electronic Discovery
By Jim Calloway, Director, OBA Management Assistance Program
Sometimes the material lawyers must read is dull. Sometimes it is very interesting. Relatively little would be described as inspiring. Judge Stephen P. Friot's article on electronic discovery in this Oklahoma Bar Journal was inspiring because it brought together all these emerging issues under one roof. It's the kind of article that you copy to have available for future reference. The article is also timely. Most lawyers have yet to be involved in a case involving significant electronic discovery issues. But for many that day is soon approaching, whether they recognize it or not. My advice is that you should read his article first - before you read this one. My prediction is that if your law practice touches in any way on litigation or business you will refer to his article again in the future - probably several times.
Bank robber Willie Sutton said he robbed banks because that's where the money was. Litigators will be increasingly mining digital information because that's where the evidence will be. Why is there now so much electronic evidence? Because more and more businesses operate electronically and so many records never make it to paper, as Judge Friot noted.
So here we will focus briefly on strategies and tools for dealing with electronic discovery - what happens after the data has been preserved, discovered and delivered to the law firm.
So let us assume that a lawyer has studiously complied with the teaching of Judge Friot's article and the case law cited therein. Opposing counsel has now delivered to the lawyer's office a box of CD-ROMs, containing 125,000 e-mails, a few thousand Word documents and an exported copy of the information in several of the defendant's databases. There is also a list of numerous items that are preserved, but not produced for various reasons.
The glow of apparent success in preserving and obtaining this digital discovery may soon fade as the next step is contemplated, "So what do I do with all this now?"
When first confronted with the idea of discovery of digital documents, many lawyers assumed that they could just print everything out. Now we understand that this is often an impossible idea. A massive database cannot be "printed out" in any meaningful way. The digital discovery must remain in a digital format so that one can use the data, searching through it and analyzing it. In addition, the amount of information received in most cases may make printing of the documents impossible or impractical.
If you have received e-mails in Microsoft Outlook format, you may of course be able to open them with your own version of Outlook. But, obviously, one cannot personally read 125,000 e-mails for a single case. Ninety-nine percent of the material is likely irrelevant. There may be hundreds of copies of the same e-mail joke contained on these CD-ROMs, not to mention the various lunch invitations, school fund raisers and all of the personal e-mail that flows through our inboxes these days.
Digital information is more useable than information contained solely on paper for the simple reason that you can search the information more quickly and easily.
So one of the features that we should have all used by now is full text searching, directing the computer to look for a word or phrase in a set of documents. This can be done to a certain extent with the Find feature of Windows. (Start, then Find, then Files or Folders and finally entering the search term in the "Containing text" box in most versions of Windows.) But results using just Windows are inconsistent. Full text searching is much more powerfully done with products like ISYS1 and DocuQuest.2 Most lawyers now have a good idea of how to do Boolean searches based on their experiences with digital legal research tools.
But full text searching, which seemed miraculous just a few short years ago is often a practical impossibility due to the huge volume of material produced. When you attempt to search tens of thousands of e-mails received in discovery to locate e-mails to and from John Smith, you also get all e-mails mentioning him, all e-mails where he was given a CC, and all e-mails relating to any other John Smith. If a prolific e-mailer in the company is dating another John Smith, that's a problem. This example assumes that your full-text search utility can search for the phrase "John Smith." Otherwise your search may return every e-mail in the organization that contains either of the words John or Smith. Of course, some of the programs that will search through hundreds of documents may lock up when asked to search through tens of thousands of documents.
Dealing with electronic discovery can be much more powerful than "mere" full text searching. But the lawyer has to understand a bit about how databases operate.
A Brief Database Primer
So, let's cover a few basics about computer databases. Many lawyers are not that familiar with databases. This overly simplistic explanation might not get a passing grade in computer science class, but it will serve our purposes.
Databases keep information in tables similar to tables that you have seen in word processing documents. These tables are composed of records and fields. Individual records are the basic building unit. A mailing list database of 100,000 people would contain a table with 100,000 records. The fields contain the different pieces of information that are in the records. So for a mailing list database, the fields would be used for items like first name, last name, street address, city, state and zip code. Our telephone directories are, in essence, a huge database printed out. Due to the alphabetical organization of a phone directory, you can find someone's phone number but not much else. You could not find everyone who lived on a certain street without reading the entire directory.
Bear with us for three more quick definitions. Queries are tools that search or change (add, update, delete) the records in a database. (Just like the word suggests, these tools ask the database something.) Forms are generally used to put new information into a database, but can also be used to display information on the computer screen. Reports are the only things that concern most of us with regard to databases. They are often the final product. Reports are often printed.
Thankfully, when most of us have to deal with databases, the hard work has already been done for us. We mainly just use the forms and mainly in two ways. We enter updated (or new) information into the database with a form or we use a form to generate a query and then review or print the report that is generated.
Electronic Discovery Tools
Digital copies of physical documents can be managed by a database with fields for such things as the author, the date, where the document was located and so forth. Many lawyers purchased their first document management software or litigation support software just to deal with huge numbers of paper documents, which were then scanned and indexed into the database. It is much easier to deal with 100,000 documents scanned and properly entered into a database than with many boxes containing the same documents. The documents can be processed with OCR (Optical Character Recognition) so that they can be full text searched as well.
But the efficiencies of using these same organizational techniques on e-mails is an emerging area.
"An e-mail is something like a database record," said Tom O'Connor, a consultant with Litigation Management Consultants Inc., which is based in the Pacific Northwest. "It contains the sender's information, the recipient's information, subject, date and Internet routing headers, in addition to the message itself."
So e-discovery software can be used to "pull apart" the e-mails received and put the information into a database. At first small technology consulting firms developed tools to do this type of operation, but now larger firms have entered the arena, according to O'Connor.
The advantage should be clear. As opposed to solely relying on full-text searching, these tools allow the lawyer to quickly segregate every e-mail sent from A to B within a certain date range, every e-mail received from a certain person or corporate domain name or every e-mail with a certain word in the body or subject line. Queries that return too many results can be sharpened by the addition of more search terms. As the litigation proceeds, the focus may shift to certain facts, places or persons. The database may then be queried again about these names with no need to request additional discovery.
We noted that software products that can handle these types of operations are grouped together under categories of litigation support software. Concordance3 and Summation4 are two of the leading products in this area, but O'Connor also mentions other products and services like Doculex Discovery Tracker, Fios, Kroll Ontrack and Applied Discovery.
Many times "outsourcing" the digital discovery operations may make a great deal of economic and practical sense for a law firm providing that concerns over confidentiality and privilege can be met. There are a growing number of vendors providing these services, including many of the national photocopying chains.
Bruce Olson is a litigation attorney with the firm of Davis & Kuelthau in Green Bay, Wis. He is a frequent speaker on electronic discovery and was one of the two lawyers who organized the electronic discovery program for ABA TECHSHOW™ 2003.
"Soon most, or all, discovery produced to you will be electronic," stated Olson. (That means you will either receive it in an electronic format or convert it into one.) "You will be looking for information that is beyond the page and you have to be able to sort, search and manipulate the information to do that," he says. Hidden information contained in digital documents is referred to as metadata.
"Many attorneys will be intimidated by all of this. But it is getting to the point that you could be committing malpractice if you don't use e-discovery," he states. Olson's litigation support software of choice right now is Summation Blaze LG Gold.5 He does note that in a few areas Concordance, is "ahead of the curve."
Even more powerful tools are developing. Olson noted the Attenex Document Mapper.6 This product can analyze documents for related concepts and note clusters of related documents. These types of powerful tools can actually help the lawyer develop ideas about groups of documents that need greater attention.
Training in this type of specialized litigation support software is always an issue. Powerful programs tend to be complex. Mikki Cox of Software@Law, an Oklahoma City-based training company, notes that she is often called as a consultant for a law firm's first use of litigation support software. "We can use Summation to organize, prepare a privilege list, exhibit list, documents for expert review, Bates stamp, text search or OCR." After the staff is trained, they may use the software themselves without utilizing the consultant. But there is almost always a need for more training, according to Cox. "These products do so many things that there is so much to learn," she says.
She also notes that products like Summation and Concordance are used in preparing the case up until trial, but then other products like Sanction7 and Trial Director8 can serve as the actual trial presentation software used in the courtroom.
Another software product which can be used to manage documents in litigation, but at present lacks the e-mail manipulation capability is CaseMap.9 This product is very popular, along with its companion products, TimeMap and NoteMap. It is also less costly than some other products.
Steve Ruhl is the practice support manager for Crowe & Dunlevy. He sees digital discovery responses exceeding 10,000 documents becoming more and more common. He notes that is it also becoming more common to "ask for the database or spreadsheet that generates the report instead of just asking for a report." In some cases the opposing party may have a proprietary database instead of an off-the-shelf database like Microsoft Access, he notes. Then the law firm may be forced to replicate the database operations just to use the material.
Another aspect of litigation that is often mentioned in conjunction with electronic discovery, is computer forensics. This involves those skilled detectives who can examine computers to track what things have been done on the computer and recovered deleted and hidden files. This will require retaing the assistance of those experts.
Many readers are already familiar with these litigation support software products. For some this may be their initial exposure to the electronic discovery tools. Like it or not, lawyers will be delving more and more into the electronic discovery minefield. Hopefully a good understanding of the tools that one can use will be of value in preventing any explosions within the lawyer's office.
1. www.isysusa.com
2. www.docuquest.com
3. www.dataflight.com
4. www.summation.com
5. The three versions of Summation are Summation LG (list price $995 single user), Summation LG Gold (list price $1,995 single user) and Summation Iblaze (list price $2,495 single user.) According to a company representation, LG Gold would be the minimum that could handle these e-mail operations.
6. www.attenex.com
7. www.verdictsystems.com Sanction II has a list price of $595 for a single user license.
8. www.indatacorp.com Trial Director 4.0 has a list price of $595 for a single user license.
9. www.casesoft.com CaseMap is $495 per single user license.
