ediscoveryEvery day, someone is predicting a sea change in the way we conduct discovery. However, due to the dogged nature of many litigators, the old “belt and suspenders” style of discovery persists. Many attorneys adhere to the philosophy of reviewing each and every document in the order that they find them. I am not here to predict the downfall of those who are sticking to that philosophy; in fact, I am quite sure that the old methods of approaching discovery will last eternally.

However, there may be a better way. By using technology to plan document review in advance, you can reduce review costs and make your firm more competitive in today’s budget-conscious environment. The question is: Which tools are best for you? e-Discovery solutions, like other business applications, continue to evolve, providing greater functionality and ease of use. You don’t have to be an IT expert to make wise choices — if you keep these considerations in mind.

Review Planning

The plan set into motion at this critical phase will often affect the overall success or failure of the review effort. The characteristics of the data tend to best shape the overall review strategy; however, this can be a hard factor to judge without sufficient information. Starting at e-mail number 1 and finishing 99,000 e-mails later will not give you a sufficient basis to form a strategy. The following options may provide a clearer picture.

Pre-Processed Search for Early Case Assessments

Pre-processed search is a relatively new innovation. In most cases, a provider will give the client an “appliance” which plugs into their network and “crawls” around to index the corporate data. From these indices, it is possible to search for documents that would be of interest. The crawling and searching are conducted on live data, prior to collection, before the data goes into costly processing. Some of these appliances will have litigation hold features as well as housing both procedures in one application.

There are distinct advantages to using these tools. Attorneys often find a reduction in costs by identifying key data sets before most collection and processing fees are incurred. Additionally, these early case assessments (“ECAs”) tend to be minimally invasive collection procedures by using centralized appliances.

With the profusion of new products entering the marketplace, a variety of options and features are now available. However, this technology is relatively new and there are some drawbacks and concerns regarding when and how it is best used. At the early stage of litigation, the attorney may not have sufficient clarity into the matter to determine context for these searches. Additionally, what broader functionality is included? Many of these applications are wonderful for search, but each must be closely examined to determine whether they are sufficient as true document review applications.

 

Questions to Ask Your Provider

  • How is defensibility maintained?
  • Is there a service surrounding the use of the appliance?
  • How are reviews conducted and how is reviewer effectiveness measured?

Conceptual Search vs. Boolean Search

Searching has been a key strategy for parsing through large amounts of data for many years. Unfortunately, many litigators do not fully appreciate the power that pre-processed searches offer in parsing through data. The traditional Boolean search will identify keywords in the data. Many underutilize the myriad combinations that are available with pre-processed searches. It is advisable to discuss search strategy with your provider to maximize the list’s effectiveness.

Conceptual search takes this parsing to an even higher level. Conceptual search engines contextualize the search term using complex algorithms to identify terms reasonably related to the keyword term you are looking for. For instance, a conceptual search on the term “asbestos” may uncover terms such as silicate, mesothelioma, Chrysotile and anthophylite. Unless you are familiar with asbestos, these terms may not be included in a common search and key documents may not be reviewed sufficiently.

Attorneys use conceptual tools for different reasons. Some use them as strategies to pool potentially relevant documents for review. Others use conceptual search as a method to collect documents in preparation for witness testimony. Still others will use it as a check against documents that have already been reviewed to prevent the accidental release of privileged documents. An electronically stored information (“ESI”) provider recently conducted a study by applying search terms after the review. The study revealed that the reviewers found only 20% of the potentially privileged data in comparison with the data found when using conceptual search. Findings such as these have caused litigators to rethink their approach to review.

Searching has distinct advantages. Used effectively, the combination of boolean and conceptual search provides both a macro and micro view into the data. If search protocols are crafted appropriately, you can effectively reduce the amount of data to be reviewed. Again, as with any technology, there are cautions. Many attorneys find that the actual search terminology can be hard to master. Also, attorneys are typically not geared toward creating tight, specific and limited search term lists based on logic. The risks are costly: An incorrectly framed or overly broad terms list can exponentially increase — or inappropriately reduce — the data universe.

For these reasons, it is always recommended that you consult with your ESI provider on list syntax. The provider will help you accurately assess search terms prior to collection and help you refine them at the meet and confer.

Questions to Ask Your Provider

  • What percentage of search terms do you reject for improper phrasing?
  • How iterative is the process?
  • Do you consult on framing proper search methodology?
  • How does your engine select terms?
  • Are you willing to testify?

Clustering and Visual Clustering

Similar to conceptual search, clustering utilizes the intelligence of an algorithm to identify documents that are logically connected. The process goes one step farther by gathering these related documents together in logical groups. For example, the system will set up a folder to store “asbestos” documents. Using clustering logic, it also stores other documents with the related terms silicate, mesothelioma, Chrysotile and anthophylite in the same cluster or folder. These folders are virtual and are only related to the review.

Clustering has similar advantages to conceptual search. It can focus your review quickly on the documents most likely to be relevant. The process is relatively automated. Your documents are automatically clustered as they are processed into the review application. Clustering is also a powerful tool for focusing review and building workflows based on industry-specific terminology. “Visual” clustering visually links documents together roughly in a scatter graph format. Many attorneys find these tools to be critical in preparing for larger reviews.

As with searching, clustering is an option you will want to discuss with your ESI provider as there are some concerns when using this technology. These systems can be confusing. Assistance from your provider is often a key to success when first using them. Additionally, many providers do not share their systems’ methodology behind the clustering. This should be a requirement for any provider you choose. The defensibility of the process could be called into question without much in the way of support, putting your case at risk.

Questions to Ask Your Provider

  • What bases are considered when the clustering occurs?
  • Can I vary the methodology to suit the needs of my case?
  • What options do I have for viewing the data?

Workflow Management

This handy system will create and automatically distribute work packages to your reviewing attorneys. The review itself can be fast-paced. These workflow management capabilities, which are often included within the review applications themselves, can remove much of the confusion in distributing work amongst the review team. If implemented by the provider, they can be easy to operate and are often quite automated. Additionally, workflow systems may provide detailed analytics on the pace and status of the review. Most are able to handle complex workflows that include multiple steps in the review process. Some will even allow for routing certain types of documents to set groups of reviewers automatically.

However, workflow systems can be very complex. Alterations or errors made during implementation can result in dramatic, undesired effects. Also, given their complexity, some of these systems may not make sense for smaller reviews. These systems are best set up by your ESI provider based on the needs of your case. Additionally, the provider should provide training for users monitoring the workflow system and also for users in the review process.

Questions to Ask Your Provider

  • How are documents funneled into the system?
  • What safeguards are in place to ensure that all of the documents to be reviewed have been covered?
  • How do I measure the pace of the review?
  • What training and materials exist for support?
  • What types of cases are best suited for this sort of option?

Document Analytics

With the explosion of data facing attorneys today, along with shrinking deadlines for Meet and Confer preparation, document analytics have begun to play a much larger role in case preparation. These systems provide key reports about the data being loaded into the review application. In fact, this option can be key both prior to and during the review as more data is added to the system. Most systems will provide a wealth of analysis, as well as some measure of configurability. If appropriately intuitive, these systems can provide a great deal of information about the data universe, which allows for a more focused review and more clarity into the review strategy’s effectiveness. However, like workflow management tools, these systems can be complex. Moreover, data analytic tools cannot replace professional expertise. Many attorneys find that document analytics are helpful in providing background information, but do not replace a strong project manager from your provider to walk you through options.

Questions to Ask Your Provider

  • What options are available in the analytics?
  • How are the analytics implemented?
  • What support do you provide to ensure its effective use?

Near-Duplicate Detection And Text Compare

Another useful option for review is near-duplicate detection. This process is ideal when reviewing both scanned images and electronic documents, especially if there is overlap between the two. This tool will identify documents that are similar according to a certain percentage of precision. For instance, two documents are considered to be near-duplicates if they are 60% the same. The 60% threshold is designed to account for OCR errors and document drafts, but it is configurable.

Additionally, some providers link the detection with a “text compare” tool that shows the differences by displaying the documents side by side. Variations between the two documents are evident through color coding. These tools are highly advantageous in ensuring that similar documents or drafts are coded identically. They are critical to preventing accidental disclosure of privileged documents.

There are a few causes for consideration before using these tools. Attorneys must closely examine the threshold applied for duplicate detection. Set inappropriately, the threshold will allow for too many or too few documents identified as near-duplicates. The threshold will vary based on the amount of near-duplicates and the quality of the scanning. It may be necessary to adjust the threshold after first examining a sample set of the data.

Questions to Ask Your Provider

  • How do you determine thresholds?
  • How do I see the comparison between near duplicates?
  • How do I include near duplicate and text compare into my review workflow seamlessly?

Although these technical applications tend to vary and may at first seem to be unapproachable, many attorneys find them obligatory to conduct a modern document review. These tools can streamline and focus review. They can reduce your cost of review and make your practice more competitive as clients strive to reduce their costs.

If it has been a while since you last reviewed these tools, you’ll be surprised at how far this technology has come in a relatively short time. Numerous solutions are now available, offering a wide range of functionality. Legal technology companies have worked diligently to shore up the power and accuracy of their tools, and also make them as user-friendly and accessible as possible for attorneys and their staff. The best way to learn about this important aspect of your practice is to talk to the providers. Ask a lot of questions. As you will soon see, knowledge of your potential tools will greatly improve your practice.

Reprinted from Law Journal Newsletters, June 2009, an Incisive Media Publication.

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