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Discovery practices have evolved with technology. In the past, responses to requests for the production of documents entailed solely a search for paper documents. The actual production of documents to an opposing party consisted of making photocopies of responsive documents and bates stamping them with a device that usually left ink on your fingers and clean white shirt.

However, the evolution of corporate computing, from mainframe computing to computers on every employee’s desk, local area networks, and Internet-based services, has changed our perception of what constitutes “responsive documents.” In fact, the definition of documents in Rule 34 of the Federal Rules of Civil Procedure includes “data compilations,” and courts routinely require parties in litigation to produce documents stored in electronic format. Electronic documents include, among other things, Word documents, spreadsheets, databases, PowerPoint presentations and e-mail. These documents can reside on hard drives, floppy disks, CDs, network servers, archive servers and back-up tapes.

Production of electronic documents and data in litigation often requires the assistance of an outside vendor (an “E-Discovery” vendor) to retrieve the documents and/or data and to put them into a reviewable format. As a result of the changed environment, the legal community has seen a rapid proliferation of E-Discovery services. There are plenty of E-Discovery vendors ready and willing (but not necessarily able) to assist you in meeting your client’s E- Discovery needs. Because selection of an unqualified or uncooperative E-Discovery vendor can be costly and detrimental to your case, the focus of this article is some succinct advice on how to go about selecting an E-Discovery vendor.

What is an E-Discovery Vendor?

An E-Discovery vendor is someone with the ability to assist lawyers and clients in obtaining electronic data in litigation. An E-Discovery vendor has the ability to work with a client’s IT staff to ascertain where documents are stored, in what format they are stored and how the data can be retrieved in a way that does not change it. In addition, an E-Discovery vendor generally has access to equipment and personnel that allow legacy data from dormant e-mail, word processing and other systems to be read and retrieved. Qualified E-Discovery vendors also know how to convert the obtained data into a format that allows attorneys to review and produce it.

What is the E-Discovery Vendor’s Lingo?

I have put together a glossary of terms that may arise in your dealings with E-Discovery vendors. While this article will not discuss all of the terms set forth below, having this glossary in your files will help you talk to E-Discovery vendors about their services and to make decisions about how to manage electronic documents during the course of litigation.

• Active Data:   Data on a computer that can be accessed without restoration
• Application:   A software program such as Word or Excel
• Attachments:   Electronic files appended to an e-mail message
• Backup:   A copy of data for preservation purposes; data is often backed-up on a network file server or backup tapes
• Burn:   Computer slang for “copy” (i.e. to burn files to a CD)
• CD-ROM:   A common data storage medium, often used to carry, trade and produce electronic files
• Custodian:   Person having control of an electronic file; often referred to as the “employee source” during the discovery process
• Data:   Electronic information stored on a computer
• De-Duplication:   The process of removing duplicate files from a document population
• Deleted File:   A file with disk space that has been designated as available for reuse; the deleted file remains intact until it is overwritten
• E-mail:   Electronic mail or computer-based mail
• E-mail String:   A series of e-mails linked together by e-mail responses or “forwards”
• Electronic Discovery:   The process of collecting (also called “harvesting”), preparing, reviewing, and producing electronic documents in the context of the legal process
• Electronic Image:   An electronic or digital picture of a document; the most common image used in E-Discovery is TIFF (Tagged Information File Format)
• File:   Data stored under a specific name
• File Format:   The organization or characteristics of a file that allow it to be used with certain software programs
• File Server:   A computer designated to serve as the main storage location for other computers on a network
• Floppy Disc:   A common storage medium used to copy and port relatively small amounts of data
• Hard Drive:   A computer’s primary data storage device
• Harvesting:   The process of retrieving or collecting electronic data from storage media or devices; an E-Discovery vendor “harvests” electronic data from computer hard drives, file servers, CDs, and backup tapes for processing and load to storage media or a database management system
• Keyword Search:   A search – of the text of documents in a database – designed to retrieve documents containing a “keyword;” generally the most basic of a number of searches; depending on the software application’s capabilities, a variety of advanced searches can be performed
• Meta data:   Data about data; resides in the shadows of a document and usually includes information such as, author, recipient, creation date, modified date, etc.
• Native File:   A file in its original file format that has not been converted to a digital image or other file format
• Network:   A group of computers linked together (“networked”) for the exchange and sharing of data
• OCR Text:   Optical Character Recognition; searchable text that corresponds to a document image; an OCR software program designed to “read” a document image generates OCR text.
• PC:   Personal computer

The E-Discovery Process

The process of obtaining and reviewing electronic documents/data consists of several parts – assessment and budgeting, harvesting, filtering, and formatting.

• Assessment and Budgeting. The costs to harvest and process electronic data depends upon two factors: time and amount of data. E-Discovery vendors typically charge by the hour to harvest data. Thus, knowing the number of servers, work stations, back-up tapes, and legacy systems involved is essential to budgeting the harvesting costs. The first step in the process is usually a conference call with someone from the client’s IT staff, your firm’s discovery guru, and the E-Discovery vendor you have in mind. Preliminary calls are necessary for the E-Discovery vendor to have adequate information to price the project.
  
• Harvesting. Harvesting is the physical process where information is copied from the client’s various computers and data storage systems. This is often done by the E-Discovery vendor. Sometimes, clients with robust IT staffs will do the harvesting as directed by the E-Discovery vendor. The harvesting needs to be done in such a way that it copies the data as is and does not change any of its profile characteristics such as metadata.
  
• Filtering. Data harvesting is broad in scope. Hard drives, disks and backup tapes are simply mirrored. After the information is acquired, the E-discovery vendor, working with counsel, will develop a set of terms to pull out documents and data that may be relevant to the litigation. In other words searches are used to “cull” down the gross collection to a more manageable and relevant size.
  
• Formatting. After filtering, documents are either put into some type of electronic format so they can be reviewed in a litigation support database or “blown back” to paper to be reviewed manually.

Tips for Vetting the Vendor

• Get ahead of the knowledge curve. Learning about E-Discovery on the fly is difficult at best. Make someone in your firm the E-Discovery guru and give that person the time and resources to get educated so that he or she can educate the rest of the firm. Becoming knowledgeable entails tracking the case law, attending seminars, reading the trade journals, and spending time with E-Discovery vendors. Learning about E-Discovery now, before you have a large matter with complex E-Discovery issues, will save your client time and money in the long run. The more knowledgeable your firm is about E-Discovery the better job you collectively will do in hiring the appropriate vendors.
  
• Meet the vendors before you need them. Call E-Discovery vendors and ask them to either visit you or do an Internet-based demonstration of their services. In-person visits are always helpful because you can “size” up the vendors. Ask for pricing information and an overview of how they approach the process. How do they harvest the data? How do they sort it and process it after harvesting? Are they able to create load files to import the data into commonly used litigation support databases? After you have pricing information from multiple vendors, compare it and query the vendors on why their pricing differs from their competitors. Seek to understand the assumptions that underlie their pricing models.
  
• Don’t be afraid to leave your office. Once you have some familiarity with the vendors, pick the two or three E-Discovery vendors with whom you were most impressed and go see them. In this day and age it is easy to create the appearance of a large operation through slick marketing materials and deft use of Web sites. By going to the vendors you will get a feel for how many resources they really have and can bring to bear on a particular E-Discovery problem. You will also get a feel for how many employees they have and whether they sub-contract all or most or their services. Finally, you will also get the opportunity to ask questions of the company’s technical people. Members of the technical staff often bring a different perspective to your questions than the sales people and tend to be more realistic about their firm’s product and services.
  
  You are going to spend your client’s money when you hire an E-Discovery vendor. You want to make sure you know what you are buying.
  
• Do not make selection and retention of an E-Discovery vendor an ad hoc process. The whole point of selecting someone in your office to become the E-Discovery guru is to avoid inefficiency and to make sure you have the ability to make knowledgeable decisions. Your point person should be the one to contact the vendor or vendors to obtain pricing for a particular matter and to facilitate a conference call to discuss the matter. You need someone who is not completely wrapped up in the case at hand to coordinate the E-Discovery vendor’s services, to coordinate with other vendors who may be involved in the process, and to make sure that the work is being done within the confines of the budget.
  
• Avoid the super center approach to litigation support vendors. Many imaging and software companies have “branched out” into electronic discovery and seek to offer the full array of litigation support services. Our approach has been to avoid one-stop shopping for litigation support services. We like to choose vendors for their strengths. At our firm we call this the “role player” approach. We pick vendors for their true strengths and not for the continuum of services they seek to offer. This allows us to make sure we have the best available pool of talent working on a given project.
  
• Check references. Ask any E-Discovery vendor whom you would consider using on a project for references. Call them and ask reference clients questions about responsiveness, turnaround time, ability to give accurate budgets, project management skills, etc. The more the designated person in your office knows about E-Discovery in general, the better the dialogue you will have with a vendor’s references. As part of the vetting process, do Internet searches to find any articles that discuss your prospective E-Discovery vendor. The more you know, the better you will be in choosing a vendor.
  
• Do not make case-specific decisions in a vacuum. Each client has its own unique characteristics with respect to data storage and information management. Putting together a plan to manage the harvesting and review of a client’s electronic data may require some customization and will definitely require the involvement of your client – so don’t cut your client out of the vendor selection process. Your client needs to understand the process because outside people may be coming to harvest data from servers, desktop computers, and back-up tapes. In a large case, data harvesting is not only costly, but also invasive. By bringing your client into the vendor selection process you inform both the client and the vendor about the particular aspects of the project. Dialogue builds understanding and understanding enhances the efficacy of the services you provide.

Conclusion

The production of electronic documents and data is now part of our litigation culture. Cost-effective managing of the harvesting, review and production of such information requires careful selection of your E-Discovery vendors. If you take the time to educate yourself about the vendors prior to actually needing them, you will give yourself the time to learn enough information to properly vet the E-Discovery vendor.

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Mark Yacano(myacano@wrightrobinson.com) is a principal in the Richmond office of Wright, Robinson, Osthimer & Tatum. Mark’s trial practice focuses on the defense of product manufacturers, manufacturing of industrial equipment, and pharmaceutical companies in both stand-alone and complex multi-action litigation. In addition to a traditional trial practice, Mark manages the firm’s innovative Support and Information Management and Litigation Management practices.