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32 • AU G U S T 2 0 0 5 Law Technology News www.lawtechnologynews.com

By Marcy Burstiner

IT’S just so easy to plug a few numbers —or a list of names — into an Excel spread-sheet. But the ubiquity of this program incorporate offices creates headaches for

legal counsel involved in big case litigation orwho are trying to keep their clients preparedfor that possibility.

“Excel files screw everyone up,” says MaryPat Poteet, litigation support manager for DLAPiper Rudnick Gray Cary, who is based in thefirm’s San Diego office. That’s becauseMicrosoft Corp.’s designers probably didn’tanticipate that in the course of litigation, an

attorney might need to see the history ofchanges made to a defendant’s spreadsheet, orwant to print it out exactly as it appears on thescreen or in its native data form. Merely pullingit up or printing it out can taint it for eviden-tiary purposes. The same can be true for e-mails. Attorneys who aren’t tech savvy enoughto know how to handle data with electronicrubber gloves can run into trouble. And corpo-rate clients have to know that any editing ordeletion of data must be carefully considered.

All the more so in the wake of the $29 mil-lion verdict awarded in Zubulake v. UBSWarburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003),a sex discrimination case against the financial

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California Dreamin’Three firms take different approaches to EDD.

Editor’s note: In the wake of two breathtaking recent verdicts (Zubulake and

Morgan Stanley) — both with scalding, land-mark language concerning electronic data discovery abuse — we asked reporter MarcyBurstiner to take a look at how severalCalifornia-rooted firms are approaching EDD.

SHOWCASE

From left: Fenwick’s Mal Mead, Kevin Moore, Robert Brownstone PHOTOS BY RUSS CURTIS

[email protected] Law Technology News AU G U S T 2 0 0 5 • 33

services corporation. There, U.S. District JudgeShira Scheindlin sanctioned UBS Warburg fordestroying e-mails and backup tapes pertinentto the case and told the jury that they couldassume the data would have been unfavorableto the defense. (See page 46.)

Even when data still exists it often takesmore than Google to sift through it. InMedtronic Sofamor Danek, Inc., v. Michelson,2003 WL 21212601 (W.D. Tenn. May 13, 2003)Los Angeles-based Jeffers Mangels Butler andMarmaro (and co-counsel Kirkland & Ellis)won a $559 million verdict against Medtronic,for patent infringement and breach of contract,as a result of finding a key spreadsheet buriedin 50 million pages of discovery. (See March2005 LTN, page 11).

The 150 attorney Jeffers firm had fourmonths to process documents, and usedSummation Legal Technology Inc.’s namesakesoftware and a searching program calledAttenex Patterns, from Attenex Corp. (a spin-off of Seattle’s Preston Gates & Ellis).

“We were able to build a huge database in-house,” says Stanley Gibson, a partner on theMichelson case. “[But] if you are not searchingthe right way, you will miss things.”

DUMPSTER DIVINGIn the ’80s and ’90s, fear of corporate

espionage dumpster diving spurred many cor-porations to adopt paper shredding practices.But that protocol is almost useless now,because most written material is stored some-where electronically — on PCs, network serv-ices, BlackBerrys, cell phones, laptops and Zip drives.

“Our client base is so high-tech, that a vastamount of their information is only in elec-tronic form,” says Robert Brownstone, practicetechnology manager for the litigation group atFenwick & West, which has 225 attorneys andoffices in Silicon Valley and San Francisco.

Nearly as useless is the keyboard delete but-ton. Electronically shredding data is not sosimple, as data is often duplicated many timesover in various forms over interconnecteddevices in a plethora of formats. Knowing notonly how and when to deal with electronic datapreservation and destruction has become amajor selling point for some law firms.Especially if the firm can do it and keep theclient’s EDD bills low.

Take Fenwick. When one EDD servicesprovider quoted an $8 million price tag for acase, the firm decided to try doing it in-house,

using a variety of soft-ware tools its own tech-nology team had piecedtogether, and theybrought the cost down toless than $200,000.

“Fenwick made astrategic decision a fewyears ago to get intopractice support in a bigway,” says Mal Mead,director of IT projectdevelopment and man-agement. The goal wasto provide every facet ofEDD, from storing tosearching. It seemed as ifthe outside vendorscharged too much forservices that could bedone with fairly inexpen-sive software tools, if oneknew where to findthem, how to customize them and how to trainthe legal staff to use them.

It turned out to be a big undertaking.Kevin Moore, Fenwick’s director of informa-

tion technology, estimates that the firm hasinvested $1 million in hardware and storagecapacity alone. But for that they have some 75 terabytes of data storage capability, 20 TBfor practice support. Some vendors that pitchEDD services outsource most storage and pro-cessing of data of more than 2 gigabytes ofdata. (A terabyte equals a trillion bytes, a giga-byte, a billion.)

The ability to host the data in-house givesthe firm greater quality control managementand security, advises Brownstone. “It’s part ofour pitch,” he explains. “As a practical matter,any time you are putting information some-where else you are increasing the chance it willbe hacked or inadvertently discarded.”

In one case, the storage capability allowedFenwick to process more than 60 million pagesfrom its client and 120 million pages from theopposing side, and cull all of that down to 30million relevant searchable pages.

Storage capability alone wasn’t enough. TheFenwick team sifted through hundreds of soft-ware tools to find the right ones, such asdtSearch software, from dtSearch Corp., andEnCase, a forensic investigation program byGuidance Software Inc.

Fenwick considers EDD such an integralpart of its practice that business development

attorneys bring members of the legal technolo-gy team along when pitching services toprospective clients.

“The attorneys get us involved from dayone,” Moore notes. “We’ve won over someclients that way.”

But there are pitfalls to monitor when han-dling EDD in house. You can get a greater han-dle on quality control and chain of custody, butyou must know your limitations, explainsMoore. To that end, Fenwick has trained itsEDD team about how to be expert witnessesand with the help of Seattle’s TsongasLitigation Consulting Inc., has run eachthrough mock courtroom direct and crossexaminations so they will know what thecourts might want to know in terms of theelectronic data retrieval and preservation.

However, Fenwick tries to avoid putting itstechnology staff in that position, Moore said, byanticipating what courts will expect and recog-nizing what steps in the data discovery chainwill require an outside handler. In a forensicinvestigation it is important to know when toraise your hand for help before you get intodangerous territory, he says.

To walk that line, Fenwick has put togethera set of protocols for data preservation,retrieval and searching that it calls FIND, for“File Identification Narrowed by Definition,”which includes a comprehensive checklist forattorneys that outlines every stage of the elec-

See CALIFORNIA Page 34

You don’t want to look bad in front ofa judge, even if it’s just a slight appearancethat you didn’t do enough.”“

DLA Piper’s Mary Pat Poteet


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tronic discovery process and identifies thequestions that must be asked of a client.

The firm also is working on a comprehen-sive software program that can handle everyaspect of EDD. Stay tuned!

OUTSOURCINGFew firms want to be so all encompassing.

Like many, DLA Piper Rudnick Gray Cary hasfound that it needs to be able to handle someaspects of EDD in-house, but depending on thecase, it is often more effective to outsourcemany tasks. The firm, which has recentlyexpanded logarithmically after a series ofmergers, now has more than 2,900 attorneys in53 offices in 20 countries.

“I am not prepared to process more than 2 gigabytes,” explains Poteet. Some files andformats are so difficult to keep pure that spe-cialized expertise is required, she explained.

And unless you know exactly what you aredoing, you risk investing too much money fortechnology capabilities you won’t utilize, shesays, or you find that despite your sizeableinvestments in hardware and software, you lackthe specific tools necessary to adequately pre-serve, retrieve or search through the data.

Some relational data bases are particularlydifficult to capture for review, she said, becausethey are updated every second, and you have tocome up with parameters and cut-off dates oryou will end up with a seemingly infiniteamount of data to search through.

On the other hand there are problems withoutsourcing all EDD processes. “You end upwith 50 different vendors,” she said.

How much to outsource depends on theneeds of the case, she said. If on a fast track, it’sworth it to pay up front to convert all the filesto a .tiff format, because by the time you finishreviewing it you will need to produce it for theopposing side.

But without the time constraints it makesmore sense to first review it, and pick andchoose what needs to be converted, becausemost of the information you review will end upirrelevant to the case. You don’t want to payupfront flat fees, which could total $1 millionin some cases, to convert files that won’t evermake it to the other side when the cases quick-ly settle, she observes.

At the same time, if you aren’t thorough andcan’t show the courts or government agencycomplete transparency, you risk sanctions forthe client or the firm. That could be deadly toattracting future business.

The watch word is spoliation. “You don’twant to look bad in front of the judge,” Poteetsaid. “Even if it’s just a slight appearance thatyou didn’t do enough. That will get the bigheadline. A potential client will think twiceabout coming to you.”

DLA Piper outsources quite a bit, dependingon the case, she says. When hiring outsideEDD contractors the costs range wildly, withsome vendors charging per megabyte of data,others per gigabyte, and others per page or file.The firm has used multiple vendors for pro-cessing, production and forensics, includingApplied Discovery Inc., Fios Inc., Merrill Corp.,OnSite, Cricket Technologies, Driven Inc.,Syngence, Doar, CompuLit, Lex Solutio (nowEncore Lex Solutio), and Digital LegalServices, she says.

In house, DLA Piper uses a variety of soft-ware, including Z-Print, and LAW, from Image

Capture Engineering Inc.; Quickview Plus, byAvanstar Inc.; and Dataflight Software Inc.’sConcordance software.

“We are basically a Concordance house,”she says. It is important to standardize thetechnology as much as possible because youwill get better technology support throughoutthe system that way, Poteet notes.

With the Concordance programming lan-guage the firm can create its own utilities, thatwill help it do things the systems are notdesigned to do. “When it was designed no onecould fathom the types of things we need to do

now.” There is no question that the technology is

expensive, but in the context of huge litigation,the amount of the investment is well justified,Poteet says. At the same time you need to beable to produce the relevant information fast,because that could spur a fast settlement,which saves the client significant legal costs —the formula for a steady client relationship.

QUICK OBSOLESCENCE Some firms shy away from investing heavily

in EDD capability simply because the technol-ogy changes so fast.

“The good stuff is very expensive,” saysJames McKenna, technology services managerat the San Francisco office of Morrison &Foerster, which has 1,015 attorneys in 19 offices, including seven overseas. Firms caneasily end up investing heavily in a powerfuldatabase or searching program only to haveanother company come out with somethingbetter, he cautions. With so many products onthe market that handle so many differentthings, it may be more cost-effective to workwith different vendors on an as-needed basis.

McKenna considers it a long term challengeto build the expertise to design such systems inhouse. Instead, MoFo has concentrated ontraining its attorneys on what is needed forEDD, how to find and work with every kind ofdata imaginable. They are trained on how tocounsel clients on best EDD practices, includ-ing how to properly preserve data and disposeof it in a consistent and above board manner sothat if a claim should be filed or data needs tobe produced for a second review of a mergerproposal or a request for due diligence, it iseasily obtainable and fully transparent.

MoFo has standardized its EDD practicesand protocols throughout the firm and made ita key part of its litigation prevention andresponse and government compliance prac-tices, says McKenna.

How much to outsource depends onwhether the firm can host the data internally.That will depend on its size and format andwhether and how the chain of custody can bemaintained and the data kept pure, he says.“You can send me something critical to thecase and your electronic thumbprint is on the data.”

To do that, all the attorneys involved in thecase need to be able to work with the client tofigure out all the different places the data canbe. Is it on a particular computer network orstorage device? Was it backed up on the net-work or on a CD-ROM?

“You need a solid understanding of all theplaces it can be,” he says.

MoFo, during the last year, has worked witha number of EDD vendors, including Kroll Inc.,

CALIFORNIA From 3

Morrison & Foersterhas standardized its EDDpractices and protocolsthroughout the firm.”“

See CALIFORNIA Page 43

MoFo’s James McKenna


Applied Discovery Inc., and ElectronicEvidence Discovery Inc. “As for internallyused e-discovery tools, we have in the pastused IPRO eScan and Image CaptureEngineering Inc.’s Z-Print and LegalAccess Ware.”

IT’S ALL IN THE SEARCHStanley Gibson, of Jeffers Mangels,

says his firm stores files in house, butthe key to a successful discovery is in the search and the elimination of datafor review.

In the Medtronic case, it would havebeen difficult for the firm to pour through44 million pages of information, but withthe right search terms they were able tocull that down to approximately 8 millionpages of electronic files, using AttenexWorkbench and Patterns.

That’s a fairly easy task when lookingfor someone’s name, says Gibson. That’ssomething Google can handle. But if theinformation is buried in engineering

CALIFORNIA From Page 34

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Information: Reader Response card xx.

Marcy Burstiner is a San Francisco-basedfreelance writer and frequent contributor toALM Media Inc. publications.E-mail: [email protected].

drawings, that’s another matter.The searching, deduplication andelimination software you use hasto be flexible enough to handledifferent formats and differentsearching needs. And the attorneyson the case have to be creative.

“People really have to understand thecase,” he said. “If you are not searching theright way, you will miss things.”

We ultimately divided providers intothree groups.

Tier 1 providers are ones who wereestablished in the market, had at least$13,000,000 in revenues, were national inscope, were widely recognized in the mar-ket, and offered a broad range of services.

Tier 2 providers had revenues of at least$2,000,000, also offered a wide variety ofservices, and may have been either nation-al or regional in scope.

Tier 3 providers are the rest of theproviders about whom we gathered infor-mation — local or regional, specialized,companies doing related work (such asscanning and imaging, data recovery,investigative) who also performed elec-

SOCHA From Page 37

tronic discovery work. The DIYoperations are law firms and cor-porations who were doing elec-tronic discovery internally, workthat otherwise might have been

sent to a vendor.

DISCLOSURESOver the past two years, Socha

Consulting has provided paid consultingservices to (or has been reimbursed fortravel expenses) by nine of the top 20providers named in this report, and hasprovided paid consulting services to (orhave received software at no charge) fromsix of the nine listed software providers.Additionally, he has provided consultingservices to a number of services and soft-ware providers not ranked in this report,including potential electronic discoveryproviders, electronic discovery con-sumers, venture capital groups, privateequity firms, and others.

SHOWCASE

L T N

L T N

(Concordance and Summation); a spread-sheet program designed to cull key infor-mation from products such asConcordance and Summation (CaseSoft);

an off-the-shelf database application(Microsoft Access), a forensics tool(Encase); a web hosting application(iConect); a document review tool(Introspect); and even a real-time deposi-tion review application (LiveNote). Onlyone product, the powerful Attenex conceptsearch review tool, was specificallydesigned as an e-discovery product.

The most recent American BarAssociation technology survey found thatonly 11.7 percent of attorneys were usingany kind of trial technology at all. Clearlyone of the reasons that such a small num-ber of attorneys use litigation supportsoftware is that they are overwhelmed,and don’t understand where to begin orwhat tools to use.

As Prashant Dubey, vice president andgeneral manager of discovery manage-ment services at Portland, Ore.-basedEDD provider Fios Inc., says, “Electronicdiscovery is a phrase often used out ofcontext, which makes it even more chal-lenging for consumers to separate thewheat from chaff. No definitive model ofwhat defines a full-service, tier-one elec-tronic discovery provider has emerged.”

That statement is borne out in the serv-

O’CONNOR From Page 37

See O’CONNOR 5

produce information, and is given ameans of obtaining this information iftruly warranted.

• Safe Harbor: The pending rulesinclude a “safe harbor” provision — an

amendment to Rule 37 which providesthat “absent exceptional circumstances, acourt may not impose sanctions … underthese rules on a party for failing to provideelectronically stored information lost as aresult of the routine, good-faith operationof an electronic information system.”

This limited protection is a recognitionof the unique nature of electronicallystored information — which resides ondynamic systems, the normal operation ofwhich includes routine copying, modifica-tion, relocation, overwriting, and deletionof information.


EDD SHOWCASE


MOURE From Page 38

manner in which the information is stored.

LIMIT SANCTIONSThe proposals would also limit the

practice of issuing sanctions based solelyon the fact that the requesting party canpoint to some electronic information thathas not been produced.

Rule 37(f) would prohibit sanctions forthe loss of information due to routineoperations, such as the recycling of back-ups or the automatic deletion of informa-tion pursuant to e-mail managementapproaches, provided this was the result ofprocesses managed in “good faith.”

The committee has made it clear, how-ever, that in assessing “good faith,”courts will look at the way in which theentity assessed the need to preserve inac-cessible information which might be lostby such routine operations. In anextreme case, for example, an entitymight have actual knowledge that thesole source of clearly relevantinformation was on abackup tape of a keyactor.

Under those circum-stances, while theremight or might not be aduty to preserve the informa-tion, Rule 37(f) might not prohibit a courtfrom considering whether sanctions areappropriate. Rule 37(f) would also pre-serve a court’s right to issue sanctionsunder “exceptional circumstances,” itbeing understood that any sanctionsissued would be graduated in accordancewith the culpability involved.

ALLMAN From Page 39

SHOWCASE

The pending rule is accompanied by anAdvisory Committee Note identifying var-ious types of routine operations commonto present systems that may result in theloss of data. The “Note” also discusses thevarious factors that may need to be con-sidered in determining whether the “goodfaith” obligation is met — specificallystating that the rule does not allow aparty to exploit the routine operation ofan information system to sidestep theirdiscovery obligation by failing to preventdestruction of electronically stored information that the party is required topreserve.

• Subpoenas: In keeping with thechanges described above, the pendingrules changes include analogous modifica-tions to Rule 45 provisions for subpoenas.

More detailed information on thesemodifications, the rulemaking process,the text of the pending rules and accom-panying Advisory Committee Notes, aswell as the comments received regardingthe proposals can be found on the federalrulemaking website (www.uscourts.gov/rules/index.html). L T N


existing active data, preparing and estab-lishing folders for parties to use in pre-serving future created information, andvarious other techniques.

It will most certainly involve discussionswith opposing counsel, and is ultimately abetter and more efficient way of proceeding

than guessing, as general counsel current-ly must do, the answer to the perennialquestion of what can we overwrite?

NEXT STEPSThe next steps for the proposed rules are

their consideration by the U.S. Judicial

Conference, at its September meeting, fol-lowed by a comment period and an oppor-tunity for Congress, should it choose to doso, to intervene. If Congress does not, andif the Supreme Court allows their enact-ment, the rules would go into effect by theend of 2006.


ice provider section of the survey. Justlook at the list of top 10 market leaders.(Kudos to Socha and Gelbmann foracknowledging that some vendors withthe qualifications to rank within that listwho do not appear because they did notrespond to the survey). One is a forensicsfirm; two are full-service litigation sup-port companies (coding, imaging, copy-ing); one provides post processing docu-ment review; and two are subsidiaries oflarger consulting firms.

Only four of the 10 software programsare specifically developed for litigationprocess. Some of the companies licenseproducts from other service providers;indeed although Attenex Corp. receives spe-cial notice for high praise from users, itdoesn’t appear on this list because theylicense its software to service providersrather than act as a service bureau itself.

All most confusing. And if Socha andGelbmann are correct in their predictionthat this market will continue to growbetween 50-60 percent for the next twoyears, that confusion is only going toincrease.

What’s the answer? Increased educa-tion is certainly one. While the authorsthemselves freely admit that this survey isimperfect, it is nonetheless the best cur-rently available, and extremely useful. Theauthors are in the forefront of developingindustry guidelines and standards withtheir Electronic Discovery ResearchModel project (www.sochaconsulting.com/referencemodel.htm), which is expectedto be published next spring.

In the meantime, I’m going to take twoaspirin and read the survey again in themorning.

Tom O’Connor, a longtime member of theLTN Editorial Advisory Board, is directorof the Seattle-based Legal ElectronicDocuments Institute.E-mail: [email protected]: www.legal-edocs.org.

O’CONNOR From Page 43

[email protected]

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NET RESULTThe net result of these rules, if finally

adopted, will be to emphasize the need forproducing parties to assess, at the outsetof threatened litigation or governmentalaction, exactly where any potentially rele-vant electronic information may besourced.

Once a data source is identified asaccessible or inaccessible, as measured bythe burdens and costs involved, the liti-gant will have to determine how best topreserve the information it believes is sub-ject to discovery, as traditionally defined.This may involve any of a number of tech-niques, including taking snapshots of

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[email protected] Law Technology News JA N UA RY 2 0 0 5 • 21

EDD market over the next three years,including new communications technologies,legislation and regulation, judicial decisions,and knowledge management. Suppliers proj-ect a 50 percent increase in EDD firms to 245,with specialty vendors projected to grow by70 percent. However, full-service EDD firmsare expected to decrease 40 percent to 15total.

Not surprisingly, two-thirds of suppliersexpect to sell their companies or purchaseanother company.

Here are some directions you can expect: • Technology: Improvements in search and

sampling, native file review, audio.• Law: We’ll feel the effect of the corporate

scandals, Sarbanes-Oxley, and court rulings onspoliation, cost-sharing, reasonableness.

• Education: As there is more informationabout EDD and its ramifications, we’ll seeincreased client awareness, and more profes-sional training.

Over the next three to five years we expect: • Movement toward feature/function parity

among top tier suppliers. It will not be possibleto establish true sustainable competitive

advantage, apart from brand franchise.Barriers to entry and replication can be sur-mounted by a focused competitor with time,money, skill and market execution.

• Greater client influence in decision mak-ing and cost management, resulting in a morecompetitive process.

• Growth of a large submarket of smallmatter EDD providers. The demand is notlikely to be addressed by today’s top tier suppliers, whose business models, productsand services do not scale downward particu-larly well.

2010 PREDICTIONSWe expect that corporations will:(i) gain greater control over their data

(wherever resident).(ii) establish a new C-level office of chief

compliance officer.(iii) create and aggressively manage docu-

ment retention policies.(iv) install active data management systems

which code, index and store virtually all corpo-rate documents and records.

(v) use knowledge management systems.

Litigation 2010 predictions: • E-discovery, processing and management

become routinized.• Forensic activity largely focused on data

inaccessibility (malfeasance and accidents).• Most collection and extraction processes

will be executed by the client.• Improvements in search and filtering

techniques dramatically reduce human reviewtime and cost.

• Litigation support software will providethe front-end access for most human reviewactivities.

• Native file format will be the standard forcollection, processing and production.

Ultimately, we predict a fundamentalrealignment of the EDD market, with moremergers, acquisitions and absorptions of exist-ing companies. The future EDD marketplacewill be dominated at the large matter end bysubsidiaries of very large, diversified corpora-tions. Five to seven standalone EDD supplierswill compete for mid-sized matter engage-ments. And a very broad small matter market-place will be serviced by several hundred mod-est-sized consulting firms. L T N

WHEN it comes to EDD, most attorneys agree ontwo points: 1) The technology is a major asset in

collecting, analyzing and producing evidence, and 2) It’s too expensive. But recent technology advance-ments, specifically those related to non-native datarestoration or the restoration of data outside of its orig-inating application, are proving the latter point to beuntrue. Non-native data restoration from storagemedia has emerged as a timely and cost-effective wayto leverage EDD. By eliminating the need for the orig-inating software, firms can restore data even if thecompany is no longer in existence, if the owner of thedata cannot find the software disks or if the softwarewill not operate on today’s modern computers. At atime when the majority of discoverable informationproduced by companies is found electronically, thismethod can help firms achieve more comprehensiveresults than traditional EDD methods at a fraction ofthe cost.

If, for example, one party denies sending an e-mailcontaining relevant evidence and the other party claims

to have both received it at her work account and for-warded it to her home address, many attorneys wouldthink that restoring the data from her home computer’shard drive would be the fastest, most cost-effective wayof proving the e-mail did not contain the information.

But it is actually faster and less expensive to usenon-native methods to restore the backup of the officee-mail system and extract both his and her mailboxes.By doing so, the firm can show not only what he senther, but also what she received at her work e-mailaccount and what she sent to her home e-mail address.With data from all three locations, the case is muchstronger than it would have been with data only fromher home computer.

This method is also less expensive than traditionalEDD.While the forensic recovery of her computer couldcost upwards of $2,500, non-native recovery of bothhis and her work mailboxes might run less than $1,000and would produce more accurate, and potentiallyindisputable evidence. Why? Traditional methods aremuch slower than non-native recovery and often

delayed by challenges such as inconsistent server/domain names, tape drive corrections and hard-to-findoriginating software. Plus, restoring a hard drive bringsa host of issues along with it, such as the possibility thatshe deleted or altered the data on her hard drive beforeturning it over to be examined. With non-native datarestoration, these issues are irrelevant. The result is amore accurate, efficient and cost-effective way to gather data.

Until now, cost containment has been the biggestobstacle facing the widespread adoption of EDD in thelegal field. But with technology advances making datarestoration more affordable than ever, it is time for thelegal industry to reevaluate how it gathers and presentsevidence. For corporate and outside counsel looking torecover critical evidence at a fair and reasonable price,non-native restoration of electronic data is making EDDa more viable option.

—Joel ArogetiKitchens Kelley Gaynes.

E-mail: [email protected].

Non-Native Data Storage

22 • JA N UA RY 2 0 0 5 Law Technology News www.lawtechnologynews.com

By George Socha

“One EDD grande please, de-dupedwith double metadata and a dash ofOCR. Native only, no conversion today.”

Does electronic discovery seem a littleconfusing? Do you feel like you’re pick-ing items off a menu without under-standing what you’re getting? Join thecrowd.

With new electronic discovery ven-dors flocking to the market faster thancommuters to a latte stand, and a marketthat’s gone from obscure to pervasive inless time that it takes a coffee bean to beground, it’s time to shed a little light onthis mystery called electronic discovery.So here we go. Let’s start with a defini-tion, admittedly of my own creation:

e·lec·tron·ic dis·cov·er·y n. 1. The act orprocess of providing or obtaining perti-nent information stored on a computer, acomputer network or computer storagedevices, usually in a civil action. 2. Theinformation provided or obtained throughthe act or process of electronic discovery.

Now that we have agreed on that, let’stake a closer look at the process itself. The process of electronic discovery con-sists of a series of stages. Today’s formula-tion, shown below, breaks the electronicdiscovery process into eight stages.However, the process is iterative and canproceed on parallel paths.

Identification: The process beginswith “identification:” determining what elec-tronic data should be obtained. This stageinvolves evaluating the lawsuit, investigation,or matter, along with any complaints, similardocuments, preservation demands, orders, andformal or informal discovery requests. It alsoentails determining the universe of potentiallydiscoverable and relevant electronic data in thepossession, custody, or control of the customer.Finally, you must assess which electronic dataneeds to be preserved and collected. Much ofthis work is carried out by the lawyers, withincreasing assistance from EDD vendors.

Preservation and collection: These parallelstages encompass the actual preservation andcollection of electronic data identified during

the previous activities. At this stage, most effortis aimed at assuring that the necessary data ispreserved and gathered. Virtually every form ofstorage media can become a focus (tapes, harddrives, DVDs, CDs, etc.), as well as every form ofnetwork storage device. Any physical locationcan come into play, from your computer roomsto executives’ offices to secretarial stations,and even employees’ homes. Data collectioncan be ongoing, so that, for example, copies ofall incoming or outgoing electronic communi-cations for certain personnel is automaticallysent to a secure, off-site system. Much of thiswork is performed by the EDD vendors.

Processing: At this point, electronic infor-mation is restored from whatever medium itwas on when it reached the service provider.Most data restoration involves restoring e-mailmessages, attachments to the messages, andrelated information from backup tapes.

This work is done primarily by vendors.

Restored data may not be in a form thatthe firm or legal department can use ina meaningful fashion. It might have tobe converted from a less-accessibleform, such as records kept as a proprietary database, to a form that canbe loaded into and viewed through avendor’s software, or an automated liti-gation support system. Often, far moreelectronic data gets collected than the customer wants or needs. Variousmechanisms are used to reduce the vol-ume of the dataset to a more useablesize and limit it to data with meaningfulcontent. They may include de-duplica-tion, or eliminating files based on dateof creation, specific locations, etc. Thiswork, too, generally falls to the vendors.

Review and Analysis: Review entailsadditional filtering and searching of theelectronic data, sometimes while it isstill with the vendor and sometimesafter it has been made available througha hosted or similar system. Most com-monly, the review stage has two goals,locating relevant materials and identify-ing privileged information. Analysisfocuses on making sense of the data thathas been gathered, looking for signifi-cant patterns and locating relevant per-sonnel.

Often this work is completed by lawfirm personnel using systems providedby the vendors, although portions of thework are done by vendor personnel

instead. This work can continue throughoutthe life of the matter.

Production: Vendors generally deliver datato recipients for use in other systems (litiga-tion support system, web-based repository,etc.), and on various media (CD, DVD, tape,hard drive, etc.). You’ll need to consider whatforms of production you will need: native,quasi-native (providing output from an SAPsystem as Microsoft Access files, for example),quasi-paper (TIFF or PDF) or paper.

Presentation: At the end of the day, an attor-ney somewhere is going to want to use someminiscule amount of the data. This might hap-pen at a deposition, a hearing, or even, in therare event the case gets that far, at trial. How tomost effectively present EDD is an area thathas barely been touched at all.

We’ll save that for another day. Meanwhile, bring on the coffee. Better make

that a venti.

EDD SHOWCASE

George Socha, a member of the LTN EditorialAdvisory Board, is an attorney and electronicdiscovery consultant.E-mail: [email protected].

No Need for IntimidationGetting set up to handle EDD can be painless.

L T N

It’s time to shed light on this mystery called electronic discovery.”“


By Tom O’Connor

THE immense growth of the elec-tronic data discovery market hasbeen well documented. In hisrecent survey, as reported in

LTN’s August issue, industry expertGeorge Socha (www.sochaconsulting.com ) places it at $300 million worth ofwork in 2003. A new book by MichaelClark and Richard Davey of EDDix(www.eddixllc.com) places the currentlow end at $906 million. (See page 22.)

The vast majority of this work occursin large cases handled by large firms,which begs the question, “Where doesthat leave small and medium-sizedfirms?” Certainly they can’t ignore theissue. Firms that represent small ormedium-sized businesses will eventuallyfind themselves dealing with requestsfor electronic productions, and associat-ed in cases with larger firm that arealready accustomed to EDD.

Price, of course, is the first barrierthat smaller firms face. Even a moderatee-mail production can rapidly balloon incost. Although some courts haveembraced the Zubulake v. UBS WarburgLLC, 2003 U.S. Dist. Lexis 18771(S.D.N.Y. Oct. 22, 2003) protocols forcost shifting, others are reluctant to doso, most recently the Sixth District CaliforniaCourt of Appeal (see http://caselaw.lp.findlaw.com/data2/californiastatecases/h027029.pdf.)

Perhaps surprisingly, both surveys foundthat price is not the primary consideration foreither clients or law firms. Socha found it thethird most important criteria, behind the needfor standards and project management. Thiswas echoed by EDDix, which reports that only21 percent of respondents put price first.Instead, “the combination of [vendor] reputa-tion and relationships account for twice theimpact of price.”

IN-HOUSE OPTIONS Should firms process the work in-house?

That’s a choice that Socha says is taken by asmall but steadily growing number of firms.Traditional litigation support programs, suchas Summation Legal Technologies Inc.’sSummation, and Dataflight Software Inc.’sConcordance offer options for processing elec-tronic documents. Indeed, the Socha surveyreports that Microsoft Corp.’s Access and Excelare the two most popular EDD programs, fol-lowed by Summation and Concordance, indi-cating widespread acceptance of the “do ityourself approach.”

Many firms react to this by saying, “Fine, butas a small firm we don’t have the IT staff to usein-house programs and guarantee good projectmanagement.” This problem is not insignificant.Neil Aresty, president of Boston’s LextraNet,(www.legalintranet.com) observes that “smallfirms typically do not have the resources to han-dle this data. . .The small firm practitioner haslittle clue as to how to load, organize and viewelectronic productions. [Because] the rules ofevidence and civil/criminal procedure are nothelpful when it comes to specifying the level of

detail in the deliverable of electronic dis-covery, many of these folks are just stuck.”

The answer? “They need to get expertadvice at the beginning of a matter so theycan send the right preservation noticesand get help with requesting the rightkind of deliverables,” says Aresty.

Consultant Dennis Kennedy says thebiggest hurdle for medium-sized firms isgetting past the notion that EDDinvolves only big firms, big cases and bigbudgets. “It’s hard to think of a casewhere you can say that there is no possi-bility of finding relevant information ine-mail or spreadsheets,” he says.

“Many electronic discovery providersapproach medium-sized firms selling‘solutions’ that are appropriate for onlythe largest firms, Kennedy observes.“Lawyers need to understand the tech-nology at least to the extent that theycan ask the right questions, weigh theanswers they get and work withproviders to get exactly the type andscope of help they need. What matters isthe answer you actually need, not the‘solution’ someone wants to sell you.”

Russ Aoki, a Seattle practitioner whooften serves as a court-appointed federalpublic defender, says EDD affects smallfirms in several ways. “The positiveaspects are the effectiveness in locating

key documents, the elimination of hard copystorage and the ability to organize a large num-ber of documents without a lot of staff,” henotes. “On the negative side is the cost of thetechnology and the down time spent learninghow to be proficient using it.”

Help is on the way. The EDDix report pre-dicts that one key area of growth will be servic-es targeted at mid-sized firms.

ADVICESo what advice can we offer the medium-

sized firm when facing the bewildering array ofelectronic discovery?

First educate yourself by taking advantageof the equally widespread number of CLE pro-grams in this area. Then find an EDD consult-ant that has a core competency in the types andsizes of matter your firm normally accepts andengage that consultant as early as possible.Don’t wait until litigation is filed because oftentimes a consultant involved has the greatestopportunity to manage the scope and cost ofthe project as it begins to unfold.

EDD SHOWCASE

Tom O’Connor, a member of the LTNEditorial Advisory Board, is director of the newLegal Electronic Documents Institute, a non-profit corporation based in Seattle.E-mail: [email protected]. GeorgeSocha, also a member of the LTN EditorialAdvisory Board, serves on its board of directors.

Not Just For Big FirmsE-discovery must be embraced by firms of all sizes.

L T N

Price, of course, is the firstbarrier that smaller firms face.”“


We asked some consultants, edit boardmembers, lawyers and vendors to give usadvice. Here are their secrets!

William Smith**Abramson Smith Waldsmith

San Francisco

1. Can your client or the case afford to havean electronic trial consultant sitting with youduring the entire trial? One alternative may beto have the consultant plan the presentation,scan in the evidence and set up the courtroom— but have someone in your office scan the barcodes and operate the equipment during trial.The ultimate question is whether your clientcan afford the risk of equipment failure if thereis no consultant present.

2. How experienced is your consultant?You need at least two back up systems. If it canfail, it will fail so you must reduce the risk offailure.

3. Don’t be in a hurry to scan your evidence! Scanning evidence piecemeal is aninvitation to disaster. You will forget what youscanned and this will create an organizationalnightmare. Organize your evidence first, thenscan it all in at once.

4. Don’t assume that your equipment planwill be acceptable. Carefully design your set upfor trial and get prior approval from the judge.Get your consultant and the equipment peopleinto the courtroom the day before trial to setup everything and make sure it is working.

5. There are ways to reduce costs. The pre-vailing party can make reasonable claims forexhibit costs in some states. Because the elec-tronic trial improves your chance of prevailing,consider putting some of these costs in yourcost bill. If you are on a contingency fee, andhiring outside consultants, consider renting,not buying equipment.

The cost can be passed on to the client, youcan keep current on the latest tech, and itreduces the hassle of storage.

George Socha*Socha Consulting

St. Paul

Get help from a real person if you can, andfrom written materials if no live bodies areavailable. For referrals, contact the nearestassociation of litigation support vendors (suchas www.malsm.org), and talk with colleagues inyour firm and elsewhere. Or — dare I say it —discuss the problem with your client, whomight even have some experience.

Go online. In addition to browsing throughthe Law Technology News website, (www.lawtechnologynews.com) or Law.com’s LegalTechnology site (www.law.com/tech), subscribeto litigation support listservs, such as Yahoo’shttp://groups.yahoo.com/group/litsupport.Visit litigation websites like DiscoveryResources (www.discoveryresources.com); orKen Wither’s www.kenwithers. com (He’s thesenior judicial education attorney at theFederal Judicial Center.).

If you have some breathing room, considerattending an EDD conference or sign up for

one of the vendor-sponsored webinars. Finally,look at the vendors’ websites.

Neil Aresty*LextraNetBoston

Evidence is like ice. It melts, changes formand disappears over time. Small firms need toknow what they don’t know and hire compe-tent experts to help with the full spectrum ofdiscovery issues — from issuing proper noticeand preservation letters, to correctly harvest-ing electronic data as it was kept in the normalcourse of business, to deciding whether toreview the materials in native form or convertto tiff or PDF image format.

Exercise diligence, check into the experts’experience, certifications and references!

Open books. A little technical understand-ing of file systems, operating systems and net-work architecture goes a long way — think ofit as visiting the scene of the crime.

EDD will generate more front costs, butwith the right advice early on, it can prove tobe the most significant, efficient fact gathering.

Connie Nichols*Docusource Litigation Support Solutions

New Orleans

Let discovery management software do thework. Many lawyers still impose traditionalmethods of paper discovery paradigms on EDD.But electronic files are not paper, and they areoften best not treated as such. Whenever possi-ble, redefine your processes to take advantageof the EDD features offered in your discoverymanagement platform, to review, redact andproduce discovery in its native format.

Petrification of e-files into static images rep-resents a considerable expenditure of resourcesfor a small firm. Once you understand yourapplication’s EDD features, much of that wast-ed time and expense can be avoided.

For instance, consider Summation LegalTechnologies’ new eDII syntax — it offers asimple yet powerful way to load EDD directly.Summation iBlaze 2.6 allows you to combineboth techniques: old-fashioned scannedpaper/OC’ed text (Class I) with EDD (Class II)for even more flexibility. To read more aboutSummation and EDD, see http://info.summation.com/sb/edd_news.htm.

EDD SHOWCASE

Advice for Small FirmsDon’t be intimidated.You can handle e-discovery.

QWhat’s the most important advice youwould give a small firm that is, for the

first time, tackling a case requiringelectronic evidence discovery?

[email protected] Law Technology News JA N UA RY 2 0 0 5 • 27

Bruce OlsonDavis & KuelthauGreen Bay, Wisc.

Know all applicable law in your particularjurisdiction so you can properly advise yourclient of its obligations to discover, retain andproduce all relevant information. If your juris-diction follows Zubulake V, (see August 2004LTN for latest update on this landmark litiga-tion), you will find yourself subject to a newly-created duty, as counsel, to deal directly withyour client’s IT department and personnel toput in place a litigation hold that is madeknown to all relevant employees (and periodi-cally reiterated). You can leave the technicalissues of finding and producing electronicinformation to outside vendors, but only youcan tell your client what its legal obligationsare to avoid risk of spoliation and sanctions.

Michael Kraft*Kraft, Kennedy & Lesser Inc.

New York

Everyone, not just small firms, needs tounderstand EDD. Education is the key. Withgreater knowledge, techniques and tools can beevaluated more objectively. This area is a mine-field. There is so much money involved in thisarea that it is attracting almost anyone who cansay EDD. Vendors are coming out of the wood-work with claims and approaches that are notnecessarily in the best interest of your firm orclients. So caution, education, training, process,planning and testing are the operative words.

Bruce Dorner*Solo

Londonderry, N.H.

1. Determine what you are seeking.2. Find a qualified expert — getting it into

evidence starts at the time the computer/deviceis inspected.

3. Establish the budget so the client doesn’tget an e-surprise!

4. Carefully craft your discovery requests soyou get all data (computers, PDAs, tapes, back-up media, offsite storage, repair, logs, etc.).

5. Consider working with an attorney orsupport firm who has been through the drilland gotten the e-smoking gun introduced intoevidence in the past.

Craig Ball*Law Offices of Craig D. Ball

Montgomery, Texas

Success in EDD, as in marriage, lies in goodcommunication. Use preservation letters tounderscore what must be saved and how andwhy to save it. Spotlight the “conscious” in“conscious indifference” by educating youropponent. Meet and confer about EDD issuesearly, then memorialize your reasonablerequests and your opponent’s commitments orobstinacy. Depose their IT staff before framingrequests. Trade the “any-and-all documents”broad axe for the scalpel of a request carefullytailored to what you need and can manage.

My credo is “force broad preservation butpursue narrow discovery.” That’s how to keepthe pressure on. If they stonewall, request ane-discovery special master.

For the responding party, recognize thateven optimum EDD preservation and collec-tion efforts fail: Something’s always going tofall through the cracks or be deleted. A savvyopponent can put you in the spoliation box. Be prepared to demonstrate good faith and dili-gence at every turn.

Document hold instructions, itemize sys-tems explored and everything done: costs,hours, and GBs pursued. Build the case thatyou faithfully executed a sound approach. Next,seek cost-shifting orders to deny the requestingparty a free ride. Finally, realize that some peo-ple just can’t resist “tidying up” via the deletekey. Anticipate human frailty and quietly secureforensically-sound images of key players’ harddrives before the delete-o-thons begin.

In the end, the best advice is to work togeth-er. Like nuclear war, a costly and contentious e-discovery battle is only truly won by thosewho aren’t forced to fight it in the first place.

Sara GoddardElectronic Evidence Discovery Inc.

Kirkland, Wash.

Find a services partner to assist you. Keyrequirements: make sure it is known for EDD,can handle the work, and will take time for you.

Look for a provider with knowledge and agood reputation, and get at least two referralsfrom colleagues. Ask vendors: 1) to send youtheir qualifications, 2) who they consider indus-try leaders, and 3) who is their competition.

Listen closely. Be assertive, don’t accept the

standard shill, “Oh, we’re great at everything.” Request references from folks who hired

them to handle similar projects — whether it’sa small processing job, or large. Do not settlefor someone who simply talks a good game.

The largest and smallest vendors can bothbe guilty of not caring about you and your case.If you can’t get a quick answer to your calls,they’ve prioritized a long-term or bigger clientover you. Fast, intelligent responses, thought-ful follow-up, reliable estimates and materialsare the sign of a good partner.

Jim MittenthalBaker Robbins & Co.

New York

Small firms must quickly assimilate thereality that EDD is usurping paper as the pre-ferred means of evidence collection and review.Sophisticated plaintiffs will use EDD to “levelthe playing field,” and judges are rapidly beingtrained in such areas as the tradeoffs between“tiff” and “native” productions. Small firmsmust remain current with the rapidly evolvingcase law as to the duties to preserve, the shift-ing of costs, and the evolution of “safe harbor.”

Attorneys must make an early assessment oftwo key issues:

1. Are forensic issues involved, or is thisstraightforward e-discovery? If there are alle-gations of data tampering or other malfea-sance, the specialized procedures and tools forpreservation, seizure, acquisition, and analysisof data at the forensic level must be brought tobear, particularly to preclude spoliation.

2. To what extent has an electronic docu-ment retention policy been formulated, imple-mented, and retained, prior to the onset of thelitigation?

With those issues ascertained, your nextsteps as a requesting or requested party are:

• Issue or respond to a general data preser-vation instruction.

• Conduct technology fact finding or, if arequesting party, depose the technology repre-sent on the other side.

• Assess the likely players, time frames,search taxonomies, and other issues that willdrive the information to be specifically pre-served and collected. Develop a cost estimatebased on the expected scope and party expectedto bear the burden (e.g., using such factors asaccessible versus inaccessible e-mail), and a

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corresponding strategy. • Create a detailed preservation request

with specific instructions for IT personnel andaffected users, or help negotiate a case man-agement order for the other side to do same.Develop “going forward” approaches for per-sonnel continuing to create potentially rele-vant data, such as live e-mail feeds or periodicre-collection schedules.

• Develop a collection plan and collect thecustodian, server side, and archive data in amanner that preserves appropriate metadataand chain of custody, and balances the extent ofmaterials collected with the cost and expectedvalue. Vendor involvement may be helpful.

• Certify and release the litigation hold. • Filter and de-duplicate the collected data.

Vendor involvement is warranted here.• Load into a litigation support system. • Review for privilege and relevance and

prepare for production.

Judith Flournoy*Loeb & LoebLos Angeles

Understand early on if data will be usedlater, i.e., is this discovery or just checking?

Chain of custody and metadata are critical,as is data integrity. Simply importing anOutlook PST file (mailbox) into your Exchangeenvironment can prove highly problematic.

• Data integrity: You have no control overcontent, it may contain viruses or the amountof data may exceed the capacity of your system.

• Chain of custody: Once you import a PSTinto your Exchange environment, the chain ofcustody includes your firm and IT department.

• Metadata: If you simply import a PST orNSF (Notes mailbox) into your messaging sys-tem and allow your attorneys or paralegals toaccess that data and they open the message andor print the messages the metadata, the who,what and when of the message is modified.

Seek assistance from a vendor if the searchresults will be used during the case as evidence.

Albert Barsocchini*Guidance SoftwareSan Rafael, Calif.

Meet and confer with opposing counselearly on to keep cost down and specify theresponse format.

Jeff FlaxFederal Public Defender

Denver

1. Find out what information already exists

in an electronic form, and in what format. Ihave seen numerous cases where lawyers try toscan or enter information that was created andsaved electronically in the first instance.

2. Define the requirements of what youwant the EDD system to do. What and how willyou search for information, how do you need itorganized, are there special security issues, etc.Picking a product or vendor on price, reputa-tion, or ease of use often leads to a significantdisaster after it is too late. It is so much easierto build a bathroom in a house when it is beingbuilt than after.

3. Test the system or software with a fewhundred documents early on. It is far easier tomake corrections at the beginning than theend.

Chris JanakKelley Drye & Warren

New York

1. Don’t try to do it yourself. There is nosuch thing as cost-effective DIY e-discovery. Ata minimum, attempting to do so will cost twiceas much in billable hours as it would have costif you’d engaged a vendor in the first place.Worse, evidence may be inadvertently ignored,withheld or destroyed, risking malpractice.

2. Don’t bargain shop. The copy shops thatdecided a few years ago to get into the scanningbusiness are now in the e-discovery business.Owning a piece of software doesn’t make youqualified to handle a complex or sensitive proj-ect any more than owning a snorkel makes youJacques Cousteau. Evaluate qualifications anddeliverables first, and price second.

3. Keep your hand off the print button. Ifthere is any one place that attorneys need to beweaned off the instinct to review everything inthe form of paper, it’s in the EDD process. Theinstinct to turn a sortable, searchable fieldeddatabase of e-mail into mute paper must bethwarted — printing without capturing thatdata is like buying a $300 pair of shoes, keepingthe shoelaces, and throwing the shoes away.Litigation support technology is designed tomake documents searchable — stripping elec-tronic material of that characteristic is simplywasteful.

4. Construct your requests carefully andnegotiate mutually convenient mechanisms.

E-discovery has created new horizons for liti-gants who want to dump impenetrably hugeproductions onto their adversaries. A CD con-taining native-format data may be equivalentto 75,000 printed pages. Requests should besufficiently broad to encompass all the relevantmaterial, while remaining sufficiently circum-scribed and limited to avoid being buried byoverproduction. One strategy that seems towork is for the parties to agree to date limita-tions, lists of particular custodians, and evensearch terms to avoid having to review punish-ing quantities of data.

Alex LubarskyZantaz

San Francisco

Do not be intimidated! Resist the tempta-tion to run and hide. A common misperceptionis that EDD is too complicated and expensive.This leads to dangerous “gentlemen’s agree-ments” where counsel stipulate to excludeEDD. “I won’t show you mine if you don’t showme yours.”

EDD can be very simple. A vendor can har-vest, process and display the client’s electronicdata. Many review tools take even the mosttechno-adverse attorney just a few hours tobegin operation. After all, how hard is it to for-mulate a very basic word or term search andthen hit “next document and/or next page” andselect a category/issue and possibly redact theimage? In many ways, this is much easier andmore streamlined than digging through a boxwith a highlighter, sticky notes and a Bates stamper.

Finally, the cost of EDD is some 35 timesless expensive than its paper counterpart.Printing, manual labeling, copying (multipletimes per document for the various litigants,productions, and legal teams) as well as storageand any image/OCR and expensive coding feesfar outweigh the nominal cost of EDD, whichcan equate to a few cents per page, and usuallyincludes metadata extraction, tiffing, and opti-mization for review in a litigation supportapplication.

*Current or former member of the LTN Editorial Advisory Board.

**Member, Small Firm Business Editorial Advisory Board.

EDD SHOWCASE

L T N

Wake Up CallOnly on the Web: Shaw, Pittmanpartners Mark Koehn and Ed Grass offeran update on Zubulake and other keycase law that is shaping the EDD legallandscape. To read the article, visit www.lawtechnologynews.com or www.thecommonscold.com.

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