The newly amended Federal Rules of Civil Procedure has brought back the importance of document retention policies and network/IT infrastructure. For maximum resource efficiency, expert guidance can help locate documents and uncover the necessary data in a timely manner. Discover your best options for efficient document collection.

The critical aspect of electronic discovery is not only finding relevant documents, but also clearly identifying and eliminating those that are not. In this new era of e-discovery, you must collect only what is necessary or suffer the tremendous burden of wasteful, redundant review. Expert guidance can help you determine where the documents are, who sees them, what form they take, and what role technology plays in the process. As a result, the newly amended Federal Rules of Civil Procedure, especially Rule 26(a)(1B), requires counsel to clearly understand the client's IT infrastructure and electronic retention policies.

Where

Today, responsive documents are everywhere. To combat this ubiquity, the best advice you can give a client is to update and enforce its data retention and management policies. These policies, however, must be applied consistently to users and made part of the IT department's best practices.

A well-drafted document retention policy will designate the timing in which key material is reviewed, retained and destroyed. More importantly, it will ensure that copies or portions of files placed outside of traditional corporate boundaries, e.g., on non-networked drives or in portable devices, are detected and routinely deleted because they too will be discoverable.

The document policy not only promotes efficiency and reduces storage costs, but it also makes discovery less risky. For instance, if opposing counsel requests a record that was destroyed, the court may conclude the document contained information that was damaging to the respondent. However, under Rule 37(f) of the amended rules, the court is forbidden to impose sanctions if the loss was due to routine deletion in accordance with a written document retention policy.

Typical Hiding Places

The difference between success and failure in document collection depends on simply knowing where data resides. Under the amended rules, law firms have an obligation to understand a client's IT infrastructure. A lawyer's first step in discovery preparation must be to identify all IT systems employed during the relevant time period, including e-mail, word processing, spreadsheet, enterprise database, browser and instant messaging programs.

In discovery preparation, a detailed understanding of the information architecture by a trusted advisor is as valuable as legal acumen. However, the maze of techno-speak can confuse even the most seasoned litigator. For instance, if an organization uses a digital rights management program that restricts a document's accessibility, a discovery consultant would highlight this. Similarly, the consultant could also calculate the cost of production of backup tapes to confirm whether data is inaccessible under Rule 26(b)(2)(B).

People often forget the most critical items until they are embroiled in a dispute over non-compliance with a discovery order. Voicemail is one of those items and has become increasingly important because of new systems that allow messages to be saved as WAV files or text files and emailed to you. And, of course, while it seems like everyone uses a cell phone for everything, there are other portable products like BlackBerrys, PDAs, USB flash drives and even iPODs, which can easily be used to store documents. While some attorneys are familiar with the nuances associated with these issues, none approach them with the same level of knowledge and experience as a seasoned consultant.

Having identified the location of where data is stored, litigators also need to develop an understanding of how the data is stored. A discovery expert will clarify data backup and archival systems and processes, and confirm the extent of data that is potentially discoverable.

This may include archived data, such as documents or databases remaining from merger and acquisition transactions, decommissioned systems or employee turnover. For example, many companies back up the PC files of terminated or transferred employees. This also applies to exchanged, repaired or upgraded technology products, including BlackBerrys, cell phones and similar devices.

IT-Speak

With the IT department serving as the data management squad in every case, the key to successfully navigating these matters is to understand the language and expectations of the information technology staff. Given their important role in the process, a discovery guide plays an essential role as the liaison between the lawyers and IT, enhancing and encouraging collaboration.

For example, the written document retention policy may call for e-mails to be deleted after 90 days. In practice, the tape librarian might actually retain e-mail backup tapes for as long as a year before reusing them. An experienced discovery consultant is familiar with these issues and plays a key role in highlighting these hidden risks.

Improving communications and building stronger integration between the trial and IT teams results in a deeper understanding of how the client's IT systems operate, store and archive information. In turn, this improves the litigator's ability to find and produce responsive documents and clearly avoid those that are not.

Who

In light of the recent additions to the scope of the 26(f) meet-and-confer and pervasive fear over inadvertent disclosure, opposing counsel has become almost as important as a lawyer's client. Effective negotiation at the 26(f) can serve to mitigate the risk of privilege waiver and defuse potential threats of sanctions for non-compliance.

Negotiation

To prevent opposing counsel from imposing painful terms of discovery on your client, enlist the assistance of a trusted discovery expert to provide analysis, recommendations and supporting documentation to successfully negotiate:

• time periods for production
• types of documents
• inaccessible data
• parameters for responsiveness
• designation of the custodians

Safe Harbor

FRCP 37(f) contains a "Safe Harbor" provision in the event responsive documents are inadvertently deleted or destroyed. Organizations can avoid sanctions for spoliation if the destruction was inadvertent and as a result of routine operation of the party's computer system. For instance, many database management systems automatically purge old data on a regular basis. If this data was later determined to be responsive, counsel would have a basis for avoiding sanctions if they had taken reasonable precautions to prevent such a loss. Using outside assistance to explain how the database system works would enable one to take advantage of the " Safe Harbor" provision.

What

Culling non-responsive documents is the most critical aspect in reducing the cost of discovery. There are a number of culling methods available.

Filtering & Search Tools

Filtering tools permit narrowing of the documents to be reviewed by searching for specific keywords, date ranges, custodians, and file types. Advanced concept and context search tools will even categorize the final set of documents into topic-related groups (including e-mail threads) and display them in some type of visual fashion. This will enable the reviewers to identify the concepts and other qualities of the material for responsiveness.

Massive key word searches across entire corporate databases are the blunt instrument of electronic discovery. This lowest common denominator approach prevents you from targeting your search to the specific terms used by that group. A valuable technique for reducing the volume of non-responsive documents is to tailor key word searches to specific datasets. For example, e-mails for a specific department or workgroup. This can reduce your dataset by more than half.

Deduplication

Deduplication is the process of eliminating identical electronic documents using an electronic fingerprint called a hash number. Every electronic file has a unique hash number which is like your social security number. Duplicate files are identified and eliminated from processing by comparing their hash numbers. This process reduces cost, protects from inconsistent determinations of responsiveness and saves a tremendous amount of time. For example, an executive's assistant may have duplicate sets of his or her documents, making review of that assistant's files unnecessary.

Online Repositories

The search for non-responsive documents doesn't end with culling and deduplication. Most of the time spent in document review is consumed by the manual identification of non-responsive documents. In fact, document review costs are typically seven-to-nine times more costly than e-discovery processing. An experienced discovery specialist will advise your team on cost-effective methods that can dramatically improve your productivity in reviewing documents. These include using a contact search tool to cluster documents by topic for group coding; and foldering documents for context, including e-mail threads, common topics and file types, and similar content (near-duplication).

There are many review platforms to choose from. Understanding the requirements of the case will help you select the appropriate one. For example, if you are dealing with multiple trial teams and locations, a web-based repository allows counsel and expert witnesses 24/7 access in a central database. This also ensures control of which documents are reviewed and transmitted, and makes tracking and consolidating much easier.

Project Management

In addition to the online repository, experienced discovery project managers are essential for maintaining the efficiency of the process, including:

• designing a review workflow
• training users in effective use of the tool
• providing regular quality and productivity reports
• identifying issues and solutions
• ensuring project stays on schedule and within budget

An experienced discovery consultant is an expert in the field, and knows that small document reviews can easily turn into major discovery disputes. Quickly and accurately identifying what is and what is not discoverable requires strong counsel and robust standards from the onset. Selecting equipment with the processing and storage capabilities for a significant increase in project size, knowing where data resides, as well as having a solid document retention policy are imperative for successful document collection.