The Applied Discovery Orange Pages: Electronic Discovery ...

AUGUST 03
OrangePagesThe Applied Discovery
Electronic Discovery Newsletter

FEATURE Electronic Discovery: New CASE LAW UPDATES
STORY Challenges, New Opportunities
Follow up opinion in landmark
Just a few short years ago, the words "electronic Changing Times e-discovery ruling.
discovery" meant something quite different to liti- The sheer volume of electronic data involved in
gation support professionals from what they today's cases necessitated the rapid develop- Zubulake v. UBS Warburg LLC, 2003 U.S. Dist.
mean today. With the proliferation of personal ment of electronic discovery technology. "Last LEXIS 12643 (S.D.N.Y., July 24, 2003).
computer usage in the 90s, many discovery year, the number of electronic documents we re- The follow up decision to "Zubulake I" dem-
documents originated in electronic form. Yet ceived for review exceeded paper by a large onstrates an extension of the court's analysis
most litigation support departments were still margin," said Odin Medina, Litigation Support of cost-shifting in cases involving informa-
mired in the print-scan-code world. This cum- Manager at Fried, Frank, Harris, Shriver & Ja- tion from backup tapes or other
bersome process took cobson in New York. "The "inaccessible" data.
documents from comput- split was probably 80/20
ers, reduced them to pa- "In the past five years or in favor of electronic docu- In considering a request for discovery of in-
per, then converted them to so we've moved from an ments." Mary Pat Poteet, formation contained on backup tapes in the
electronic again—as scan- average of just 5% West Coast Litigation Sup- matter of Zubulake v. UBS Warburg LLC in
ned images. A litigation electronic to the point port Manager based in the May 2003, the court previously established
support manager's ("LSM") where paper documents San Francisco office of a method for examining electronic discovery
work often included assess- are in the minority. " Pillsbury Winthrop LLP, disputes in the context of whether requested
ing offshore coding ven- agrees. "Some cases are data is stored in "accessible" or
dors and comparing prices entirely electronic now," "inaccessible" format. In the follow up ruling,
exceeding $1.50 per page said Poteet. "In the past the court ordered a 75/25 split in cost allo-
just to get the documents five years or so we've cation for restoration of backup information,
ready for review. - Mary Pat Poteet, moved from an average with the defendant bearing the primary bur-
of just 5% electronic to the den of restoration costs. The court also set
Pillsbury Winthrop, LLP forth a general rule that, even when cost-
shifting is allowed with regard to
Today, "electronic discovery" point where paper docu- "inaccessible" data, responding parties must
refers to the streamlined process of efficient, ments are in the minority." pay all expenses associated with review and
cost-effective electronic document review. Online production of responsive information.
document review tools, high capacity production This shift has forced a change in the way
systems, and worldwide access to electronic LSMs must approach their work. "I've been in The court noted that the intent of Zubulake I
documents mean that LSMs now face a frontier litigation support for 12 years," said Poteet, was to simplify the Rule 26(b)(2) proportion-
rich with new challenges and new opportunities. "and I've had to change my thinking quite a bit. ality test in the context of electronic data and
to reinforce the traditional presumptive allo-
See Feature on Page 6 cation of costs.

INSIDE 4 PRACTICE TIPS Default judgment entered for
failure to comply with
2 GUEST ARTICLE Selecting an Electronic Discovery Service Provider e-discovery orders.
by Linda Alele, O'Melveny & Myers LLP
How to Sway Litigators to Embrace Comm'r of Labor of N.C. v. Ward, 2003 N.C.
the Electronic Realm 4 SPOTLIGHT App. LEXIS 1099 (Jun. 3, 2003).
by Robert D. Brownstone, Esq., Fenwick & West LLP Defendant appealed the trial court's ruling
Security and Infrastructure Take Center Stage ordering sanctions and granting default
2 THE APPLIED DISCOVERY DIFFERENCE at Applied Discovery judgment. The appellate court affirmed the
3 MIRANDA WRITES trial court's ruling.
5 TECH TIPS
"Help Me Help You!" A discovery order had required defendant to
Talking Points to Get Colleagues on the Find it Fast: Leveraging Meta Data allow plaintiff to enter defendant's place of
E-Discovery Bandwagon business at particular locations and "examine,
8 APPLIED DISCOVERY IN THE NEWS
8 UPCOMING EVENTS See Case Law Updates on Page 6

1

CONTACT US GUEST ARTICLE

Our West Coast Headquarters is outside Seat- How to Sway Litigators to Embrace
tle in Bellevue, Washington. Our East Coast the Electronic Realm
Headquarters is in Midtown Manhattan. We
have regional offices in Washington, D.C., by Robert D. Brownstone, Esq., Fenwick & West LLP
Houston, Dallas, Chicago, San Francisco, and
Los Angeles. The Terrain

Contact information for local Client Develop- Litigation support managers have long known that the electronic writing is on the wall—or, rath-
ment representatives is available at er, on the hard drives, back-up tapes, storage devices, web server logs, databases and "deleted"
www.applieddiscovery.com. files. The message is that the electronic era is in full swing; 99.997% of information being gen-
erated is in electronic form.1 In the litigation context, e-information is as susceptible to custom-
SEATTLE NEW YORK ary discovery rules and principles as paper.2
CHICAGO Still, some litigators continue to view electronic discovery as a "forbidden zone," reminiscent of
SAN FRANCISCO the region discussed in the penultimate scene of the 1968 sci-fi thriller Planet of the Apes:
LOS ANGELES WASHINGTON, D.C.
Taylor: That still doesn't give me the why. There's got to be an answer.
DALLAS Zaius: Don't look for it. You may not like what you find…
HOUSTON Zira: What will he find there?
Zaius: His destiny.
Subscribe Now! Astronaut Taylor proceeds, then finds the Statue of Liberty buried in the sand. Only then does he
realize he has not been sojourning on a foreign planet, but on Earth—albeit in a futuristic state.
To add your name or the names of collea- Similarly, litigation support managers must teach litigators that the future is now and is much
gues or friends to the Orange Pages mailing like litigation's traditional landscape. Not every lawsuit's e-information universe will contain
list, please contact us at OrangePages@ap- earth-shattering evidence analogous to Taylor's fictitious post-apocalyptic discovery. However,
plieddiscovery.com. Please specify whether the sheer volume of potentially responsive e-information has changed the tools needed in al-
you prefer to receive the Orange Pages in most every lawsuit. A recent e-discovery decision concluded that "in the world of electronic data,
hard copy or PDF format by email. thanks to search engines, any data that is retained in a machine[-]readable format is typically
accessible" and thus, if responsive, must be produced at the expense of the producing party.3

1 Peter Lyman and Hal R. Varian, How Much Information (UC Berkeley School of Information Management and Systems, 2000), retrieved
from http://www.sims.berkeley.edu/research/projects/how-much-info/.

2 See generally Lisa M. Arent, Robert D. Brownstone & William A. Fenwick, Preserving, Requesting & Producing Electronic Information, 19
SANTA CLARA COMPUTER & HIGH TECH. L.J. 131 (Dec. 2002), update at http://www.fenwick.com/pub/lit_pubs/electronic/ediscovery.htm
(June 2003).

3 Zubulake v. UBS Warburg, 2003 U.S. Dist. LEXIS 7939, *29, 35 (S.D.N.Y. May 13, 2003)
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/03-04265.PDF.

See Guest Article on Page 7

Submit An Article THE APPLIED DISCOVERY DIFFERENCE

The Orange Pages accepts guest articles and Applied Discovery's co-founders Richard Corbett and Michael Weaver were named
practice tips from legal and technical profes- "Entrepreneurs Of The Year" in the 2003 Ernst & Young Entrepreneur Of The Year® Awards
sionals interested in electronic discovery. To program in the Pacific Northwest.
learn more or request a copy of the author This award recognizes:
guidelines, contact us at OrangePages@ap-
plieddiscovery.com. "[G]reat business achievements around the world. Such accomplishments are
made possible by the entrepreneurial spirit—the incredible depth and
Case Summary Alerts character that entrepreneurs possess as they develop new technologies,
create faster ways to distribute goods and services, and improve the quality of
! Applied Discovery offers a complimen- life for people around them."
tary notification service to help you stay
up-to-date on the latest electronic dis- ERNST & YOUNG
covery rulings. Visit www.applieddiscovery.com
to sign up for monthly Case Summary Alerts.

! FAST FACTS: Discovery documents are photocopied an average of 12 times during the course of a litigation. (Source: Law Office Computing, June/July 2003) . . .
2

MIRANDA WRITES

"Help Me Help You!"

Talking Points to Get Colleagues on the E-Discovery Bandwagon

Dear Miranda,
I'm a litigation support manager at a large firm in Chicago. Our firm is relatively tech-savvy in most areas, but we are having a difficult time convincing our
attorneys to try online document review in discovery. Many of the associates are eager to use electronic discovery technology, but most of the partners are still
a bit reluctant. What can I do to convince them that electronic discovery is efficient and cost-effective?
Zoe C.
Chicago
Dear Zoe,
When desktop computers emerged as legitimate business tools in the late 1980s, many companies were slow to adopt their use. Before spending the money,
decision makers had to be convinced of the benefits: increased efficiency, speed, accuracy, and, ultimately, lower costs. Today, the idea of an office without
computers is virtually unheard of.
Similarly, some law firms today have yet to move beyond the antiquated paper review process and adopt electronic review. Skeptical attorneys give a number of
common reasons for their reluctance. Some say they prefer to review paper. Others are simply hesitant to try something new. Many believe that electronic review
is expensive. Although most lawyers and their clients have realized these objections are outweighed by the benefits of electronic discovery, some skeptics remain.
The chart below includes some common objections and corresponding talking points to help attorneys understand the value of using an online review application.

Paper Review Case Management Systems Cost

Objection Objection Objection

We prefer to review paper. Why should we switch to Our firm uses Concordance or Summation. We've Electronic discovery is too expensive.
online review? already spent the money and time for training on this
system. Talking Points
Talking Points
Talking Points • Electronic discovery is less expensive than
• It's faster. paper discovery.
Electronic discovery will save a significant • Electronic discovery and case management tools A story in the June/July 2003 issue of Law Office
amount time, particularly before and during the are not mutually exclusive. Computing reported that the average cost of paper
review process. On the front end, gathering and The first thing to understand is that case review is $.70 per page while the average cost for
printing paper documents, then making multiple management systems such as Summation or electronic discovery is $.23 per page. When you
sets of the entire document collection for paper Concordance and electronic discovery services are consider that you typically make at least three
review can take weeks, even months. With complementary. Summation and Concordance are complete sets of documents during paper discovery
electronic discovery, you can begin reviewing great trial support tools—but they are not the logical (one original, one for review, and at least one for
documents within 48 hours. During the review first step in discovery response. Using the search production), printing costs alone can quickly add
process, powerful search tools narrow the set of functionality of an online review service, attorneys up. With electronic review, you pay for only one set
potentially relevant documents in just seconds. can quickly narrow large document sets to identify of documents, and electronic originals are
Going through mountains of paper manually potentially responsive documents. A working set of preserved and accessible at all times.
not only takes longer, but also increases the the responsive documents can then be exported to a
chance of overlooking documents containing Summation or Concordance database for storage • Time is money.
key search criteria. with other trial preparation materials. Electronic discovery is considerably faster than
paper discovery. Documents are typically ready
• Ability to print responsive documents. • It's easy to use. for review within 48 hours, and powerful search
For those who strongly prefer to have paper, you Anyone can learn to use Applied Discovery's Online technology speeds the process of identifying
can print selected documents from the entire Review application in less than 45 minutes. Training responsive materials. The added convenience of
document collection after searches have been run for an unlimited number of users is provided at no worldwide access to one document database also
to narrow the data set to only potentially cost. The web-based model also means there are saves time and money by allowing your firm to
responsive documents. no hardware or software costs to be absorbed by leverage resources from multiple offices, rather
your firm. Use of online review technology won't than hiring expensive temporary attorneys and
add to your firm's infrastructure expenses, and won't paying room and board for an old fashioned "on
impact the spending choices you've already made site" paper review.
for case management tools.

Miranda Glass is Educational Programs Manager at Applied Discovery. She answers questions from readers in each issue of the Orange Pages.
You can submit a question to her at [email protected].

! In 1997, there were 130 cases nationwide that involved email evidence. In just the last 6 weeks of 2002, there were 150. (Source: National Law Journal, 2/10/03) . . .
3

PRACTICE TIPS SPOTLIGHT

Selecting an Security and Infrastructure Take
Electronic Discovery Center Stage at Applied Discovery
Service Provider
This issue's Spotlight column features an interview coming into a network by keeping hackers out
by Linda Alele, O'Melveny & Myers LLP with Mark Stokes, Vice President of Information and confidential data in. Our intrusion detection
Technology (IT) at Applied Discovery. His group is systems work in concert with our firewalls to block
In many law firms, the litigation support responsible for all IT functions related to client and suspicious incoming connections, stop malicious
manager is tasked with the responsibility to employee information systems, most importantly programs from spying on the system, and prevent
research, interview, evaluate, and select an ensuring the security of confidential client data. confidential information from being sent out with-
electronic discovery service provider. The out permission. Our firewalls are configured as
following checklist will assist you in making The Orange Pages (TOP): Mark, can you securely as possible. Of the more than 65,000
the right decisions. explain what happens in the IT group and how ports available to transmit data over the Internet,
it's different from the software development we limit access to only two. Additionally, we em-
1. Know what you want to accomplish. department? ploy full-time security experts dedicated to learn-
Do you want to host data in-house, or on- ing about each new virus and constantly updating
line? Do you want simple data conver- Mark Stokes (MS): It's very common to our systems to make certain nothing gets in.
sion, or do you need a complete electron- confuse software developers and IT pro-
ic document review interface? If you have fessionals. At Applied Discovery, the de- TOP: What else do you do to secure client
a large data set or reviewers in multiple velopment group develops and creates data?
locations, you may want to handle the our product, the Online Review applica-
project differently from the way you would tion. The IT group takes care of the hard- MS: Right from the start, each client is as-
manage a small case with data from just ware and applications to support that signed a dedicated server. As we process
a few custodians. function. In the simplest of terms, devel- client data, every document is run
opers handle the software and we through rigorous virus detection. All
2. Remember: experience counts. handle the hardware. communications are encrypted
Consider whether the service provider using 128-bit SSL encryption
has handled cases of similar magnitude, TOP: Well, that certainly is technology, which allows users
processed similar file types, and man- easy to understand. How do to confirm a web server's
aged projects for comparable clients. Ev- you ensure that clients have identity through a web-
ery service provider has experienced diffi- secure access to their data browser. An SSL connection
culties with some projects—what they 24-hours a day and 7- requires all information
learn from their experiences is the impor- days a week? sent to and from a server to
tant consideration. These prior situations be encrypted by the send-
should serve to make the provider better MS: We provide our clients ing software and decrypted
equipped to handle new projects. Don't with access to their docu- Mark Stokes and the IT group by the receiving software, pro-
be afraid to ask about these issues, and ments anytime, anywhere via the take extraordinary measures to
be sure to request references. Internet. Any company can host an secure client data. tecting information from intercep-
tion over the Internet. In addition,
3. Assess the provider's review tool. online service, but to provide clients all data sent over an SSL connection
Be sure the application functions properly with the highest level of security possible is another is protected with a mechanism for tamper detec-
in the environment in which your users will thing. We use only the best hardware and software tion, automatically determining whether the data
be working. A flawless demonstration systems available. That configuration is housed in has been altered in transit. 128-bit SSL encryp-
doesn't necessarily mean the application a state-of-the-art data center, connected to the In- tion has never been broken. Experts estimate
will work well inside your firm. Ask the pro- ternet using fully redundant networks and firewalls. that it would take a trillion-trillion years to crack
vider to demonstrate within your firm's net- using today's technology.
working environment. Functionality of the TOP: Fully redundant? What does that mean?
review tool is also critical. Look for these As for physical security, our client servers are locat-
important features: ability to redact on the MS: Even though we take every precaution to ed in a secure remote facility under 24-hour-a-day
fly; ability to make annotations; safeguards ensure that our networks and firewalls are run- guard with seven security checkpoints requiring a
to alert a reviewer that document designa- ning day and night, we have to prepare for the combination of authentication methods including
tions have not been saved; and sophisticat- worst. We always run in "high availability mode," cardkeys and biometrics (such as hand scans). Ad-
ed search functionality. which means that if a problem is detected in any ditionally, the building is set to run for two full
component, backup systems automatically take weeks at full power in the event of a major disaster.
4. Evaluate the ability to track the progress over. This applies to all aspects of communica-
of your case. tion, including Internet access, network infra- TOP: What can clients do to help maintain the
A summary screen or snapshot of the re- structure and firewalls. We even have contingen- security of their data?
view will enable you to track the volume of cy recovery scenarios and processes in place to
data and the progress of your reviewers, cover contingencies. For example, if one of our MS: The most important thing clients can do is
and will assist you in monitoring costs as Internet connections fail, we have automatic ac- keep all usernames and passwords secret. Oth-
data is uploaded. This helps avoid sur- cess to seven other Internet service providers. er than that, we take care of the rest. We em-
prises and miscommunications with your ploy experts in security, data center architecture,
client along the way. TOP: Can you tell us a little about firewalls? network communications, and server manage-
ment, so our clients don't have to worry about
See PracticeTips Page 6 MS: Firewalls act as a security barrier for traffic these issues on their end.

! In 2002, the FTC and DOJ were notified of 182 transactions valued at more than $500 million. (Source: Corporate Counsel Magazine, June 2003) . . . . . . . .
24

TECH TIPS

Find it Fast: Leveraging Meta Data

Many attorneys find that the greatest benefit of electronic document review is the ability to search millions of pages of data quickly and with precision. How-
ever, if you limit your searches to basic keywords, you may suffer the same frustration as users of popular search engines such as Yahoo!® or Google™,
where too many, too few, or even irrelevant documents are returned because the search parameters were too broad. With electronic discovery, the best way
to pinpoint critical documents is to harness the power of meta data.

What is meta data?

Meta data literally means "data about data." It describes how, when, and by whom an electronic document was created, modified, and transmitted. Software
programs embed various categories of meta data in documents.

For each document created there can be dozens of fields of meta data that are transparent to the user. In true electronic discovery, where electronic data is
gathered in such a way that the meta data is preserved, searching these fields can maximize the benefits of the search process. Although most electronic dis-
covery service providers support meta data searches, the actual search tools vary. The following examples demonstrate how to use meta data to improve
search results using Applied Discovery's Online Review application.

Task 1: Find all emails for custodian Task 2: Find all emails and Task 3: Find all documents stored in a Task 4: Find all spreadsheets that
Beth Dole with the word "competition" attachments received by custodian particular folder. include the word "sales."
in the subject line. Todd Smithson after January 1, 2002,
that contain relevant terms and have File directories offer great To find documents that include a
Most email programs offer great not yet been reviewed. organizational flexibility to computer breakdown of financial information,
flexibility to users in ways to address a users with the ability to create such as sales by quarter or region, it
message to a single recipient. For Depositions are often scheduled early in directories, sub-directories, sub-sub- makes sense to search for just
example, to send a message to "Beth the course of litigation, prior to a directories, shortcuts, etc. For spreadsheets, as that type of program
Dole," a sender may type the full complete review of the documents. By reviewers, the challenge is to make is designed specifically for that type of
address ([email protected]), or combining a keyword search of a sense of these unique file directories information. Microsoft Excel is a
type a display name that will resolve to custodian's documents within the and find data relevant to the case. In common spreadsheet program; its
an actual address (Beth Dole, BethD, relevant date range, and limiting search this example, assume that the file extension is ".xls".
Beth, etc.). In addition, the user might results to documents not yet reviewed, reviewer has already found an
send the message directly to the attorneys defending the deposition can important document that contains To retrieve desired results, search specific
recipient, or may choose to send a quickly find the remaining documents information crucial to the case. meta data fields by following these steps:
copy (by CC or BCC). Searching only that must be reviewed for witness Chances are that other documents
for messages sent "To" Beth Dole might preparation prior to the deposition. previously saved to that particular Step 1: Enter the word "sales" into a
exclude potentially critical messages. folder are also relevant. basic search query.
To retrieve desired results, search specific
Furthermore, you are looking only for meta data fields by following these steps: To retrieve desired results, search specific Step 2: In the file extension field, type
messages with the word "competition" in meta data fields by following these steps: ".xls" into file extension meta data
the subject line. The results of a simple Step 1: Enter the desired search terms query to narrow the results to include
keyword search may include irrelevant into a basic search query. Step 1: View a document's meta data only Excel documents.
messages with the word "competition" in and copy its internal file path.
the body of the messages. Step 2: Enter "*Smithson*"† in the
email address field. Step 2: Choose the relevant custodial
To retrieve desired results, search specific source or, in the case of shared folders,
meta data fields by following these steps: Step 3: Include all documents choose to search all documents from
received on or after January 1, 2002, all custodians that have the same
Step 1: View the meta data of one by entering 01/01/2002 in the date internal file path name.
of Beth's emails and copy its SMTP received meta data field, then select
address. "greater than or equal to." Step 3: In the internal file path field,
paste the first document's file path
Step 2: Paste the SMTP address in the Step 4: Using Applied Discovery's into a meta data query to return all
email address field. advanced search filters, narrow the additional documents saved in the
results by selecting only those documents same folder.
Step 3: Include all the potentially not in the "reviewed" collection.
relevant results by adding the same
search term to each email address The term meta data has taken on an unfortunate negative connotation for many legal professionals. In reality, meta
option (e.g., To, From, CC and BCC). data very rarely reveals a "smoking gun" document or otherwise harms a litigant's case. In all cases, use of meta da-
ta in your searches will dramatically improve the speed and accuracy of your work.
Step 4: Narrow the results to
messages that include the word
"competition" in the subject line.

† An asterisk(*) indicates a wildcard, which means the search engine will find all instances of the search term regardless of what comes before or after it.

This issue's Tech Tips column was written by Carrie Davey, Account Manager in the award-winning Client Solutions Group at Applied Discovery. If you have a
technical issue you'd like to see addressed in this column, send a message to [email protected].

! The average volume of discovery data collected from a custodian has increased more than 500% in the past 5 years. (Source: Law Office Computing, June/July 2003) . . .
5

FEATURE (continued from Page 1) Once the document review is underway, elec- CASE LAW UPDATES
tronic discovery technology enables the LSM to
We can't touch every document now. So much provide important information to the attorney (continued from Page 1)
electronic data is irrelevant and not respon- managing the case. "The design of quality on- inspect and copy" information including "all
sive in the case. It is important to find a way line review applications allows us instantly to information stored in computers, computer
to weed through it all." check the status of review for any custodian," hard drives, removable electronic data
said Poteet. "This makes it so much easier to fol- storage media, diskettes, magnetic tapes,
Out with the Old low the progress of the case and manage the CD[-]ROMs, zip discs [sic] and jazz discs
project. It enables the LSM to gauge how close [sic]." Defendant was also ordered to pro-
Many LSMs learned quickly that the old methods we are to being ready to produce." Poteet noted vide plaintiff, at defendant's expense, with
of scanning and coding documents were not that this functionality also enables the LSM to as- a copy of any backup data from equipment
well suited for electronic data, and most attor- sist in making staffing decisions. "In some cases, removed from the site, and to provide
neys were happy to hear that the days of review- including a large litigation or a second request, plaintiff with a description of the process
ing fuzzy scanned images were limited. Some every day costs the client money. The ability to used to access the data.
attorneys still cling to the idea of touching each quickly judge the progress of review tells us Despite multiple discovery orders, defend-
document in paper review, however, and this whether we should throw more people at the ant failed to cooperate in providing the re-
poses new challenges for LSMs in the world of project, consider producing on a rolling basis, quired information. The appellate court de-
electronic discovery. "It is sometimes difficult to or make other modifications to our review plan." termined that defendant's conduct in
get attorneys to understand that it's often not As the case progresses, it is critical for the LSM repeatedly attempting to thwart plaintiff's
best to simply print the documents from comput- to closely monitor costs. Although the per-page discovery efforts was sufficient to invoke
ers for review," said David Couzins, Firmwide prices are less than for paper discovery, fast harsh sanctions.
Manager of Litigation Support based in the Chi- turnaround times mean that expenses are in-
cago office of Winston & Strawn. "It takes longer curred sooner. In the days of paper review or For full summaries of the cases noted above
and is more expensive." Medina agrees that and a complete listing of cases related to the
convincing attorneys to try something new can "As more attorneys gain law of electronic discovery, visit our online
be a difficult undertaking. "Concerns about costs experience with electronic Law Library at www.applieddiscovery.com.
and turnaround times are typically the issues we discovery, the question changes Our Law Library is updated monthly, and also
hear," said Medina. While some still balk at the from whether to use electronic features court rules summaries, white papers,
perceived expense of electronic discovery, stud- discovery technology to which articles and other educational materials relat-
ies show per-page prices for use of electronic tool to use for review." ed to electronic discovery.
discovery technology are about one-third the
price of paper discovery. A recent article in Law - Odin Medina PRACTICE TIPS
Office Computing magazine estimates that pa-
per discovery costs an average of $.70 per Fried, Frank, Harris, Shriver (continued from Page 4)
page, while electronic discovery costs an aver- & Jacobson 5. Keep in mind that not all service providers
age of $.23 per page.1
the print-scan-code process, discovery expenses are created equal.
"As more attorneys gain experience with elec- tended to trickle in each month. With electronic Although a company advertises "electronic
tronic discovery, the question changes from discovery, the client often receives one bill for discovery" services, they may not have ex-
whether to use electronic discovery technology the entire case. With foresight and proper man- pertise in this area. Be wary of smaller
to which tool to use for review," added Medina. agement of attorney expectations, the LSM can companies jumping on the bandwagon.
help avoid surprising the client with an electron- Look for proven electronic discovery exper-
Adding Value to the Case ic discovery bill. "It can be difficult to estimate tise and quality client service.
electronic discovery costs," noted Couzins,
Electronic discovery technology offers LSMs the "because you aren't simply counting boxes of Linda Alele is the Manager of Practice Sup-
opportunity to add value to the firm's cases in paper." Asking your service provider for guid- port at O'Melveny & Myers LLP in Los An-
ways they couldn't before. Providing electronic ance on this issue is critical. There are a num- geles. She has been a litigation support pro-
discovery expertise, assisting lead attorneys in ber of ways to help attorneys set reasonable cli- fessional for 20 years.
managing the progress of review, and helping ent expectations, even though definitive cost
to set client expectations about costs are all im- estimates are difficult to make before the elec- Online Litigation
portant aspects of the job of most LSMs today. tronic data is processed. Support Survey
Many people fear the unknown and resist any-
In the early stages of a case, the LSM is often thing new. By conveying the benefits and ease- Take Applied Discovery's online sur-
called upon to provide expertise about various of-use such technology offers, LSMs can bridge vey of litigation support professionals
electronic discovery service providers and options the gap for attorneys to embrace electronic dis- during September and October,
for review. At this juncture, it is important to know covery sooner rather than later. 2003 at www.applieddiscovery.com. Be
what services will be required in the case. "You among the first 100 respondents, and receive
have to consider how many steps the provider 1 7 Deadly Sins of Electronic Discovery, LAW OFFICE COMPUTING, a $10 Starbucks Coffee certificate.
will be involved with—whether there will be a p. 84, June/July 2003.
consulting component up front, whether the client
needs assistance with data recovery at the site,
how the data will be processed and reviewed,
and ultimately how it will be produced," said
Couzins. "Different attorneys have different
needs," added Medina, "and it is important to fa-
miliarize yourself with all the available options so
you can provide advice." Medina notes that this is
a critical point at which LSMs offer a distinct ad-
vantage: "By leveraging your experience on other
projects with other attorneys, you can provide
comfort to those who haven't done it before."

! Paper discovery costs an average of $.70 per page. Electronic discovery costs an average of $.23 per page. (Source: Law Office Computing, June/July 2003) . . .
6

GUEST ARTICLE (continued from Page 2)

In many cases, the vastness of the potentially production whether [s/]he conducted a • Documents that are location-independent,
responsive set of electronic information has search and what steps [s/]he took to as- i.e., available for review by litigation team
made it practically impossible for the litigation sure complete production."5 members anywhere, anytime over a se-
team to review hardcopy documents page-by- cure Internet connection.
page. "[B]y comparison to the time it would • Obtaining and Shaping Computer
take to search through 100,000 pages of pa- Experts' Written or Oral Testimony • Automated capabilities to:
per, the average office computer could search When assessing a motion to compel, many > Content-search the data set and sub-
all of th[ose] documents for specific combina- judges now expect an expert with sufficient ex- sets thereof.
tions of words in minutes, perhaps less."4 pertise to provide a detailed written or oral ex- > Identify privileged documents.
planation of the technical issues. Thus, the > Redact.
The E-Litigator's Multi-Faceted Duties prevailing party in an e-discovery dispute may > Segregate documents covered by a
very well be the one who has retained the ex- protective order, including those catego-
The need to efficiently and effectively tame the pert with more impressive credentials and an rized as "Attorneys' Eyes Only."
electronic beast mandates that litigators become enhanced ability to explain the client's position. > Add electronic comments or annota-
facile with tools enabling compliance with the full tions to copies of documents.
range of modern discovery obligations. Litigators' Tips for Shepherding Litigators to Tech Tools > Search subsets encompassing records
legal and professional duties now include: already reviewed and/or annotated by
In all the above regards, the litigation support other team members.
• Requesting Electronic Information from manager can demonstrate to the firm's litigators > Context-search.
Opposing Parties and Third Parties how technology tools comprise the best method > Track productivity of the reviewers.
> Identify the appropriate scope of e- to assure full satisfaction of preservation and
information. production responsibilities, and to generate ef- • Where appropriate, the advantages of re-
> Send a preservation letter and/or seek a fective, defensible requests for production. Some taining a computer forensics expert
preservation order. tips on fostering a comfort level with e-discovery —especially when the litigator can specify
> Consider early Fed. R. Civ. P. 30(b)(6) technology tools include: what item(s) the expert should uncover
depositions of the opposing party's em- from a hard drive or a web server log or
ployee(s) most knowledgeable about the 1. Talk the Litigation Talk some other device.
opponent's IT systems. Learn enough about both traditional discov-
> Assure compliance with the "meet and ery and e-discovery to assure litigators that • Chain-of-custody/authentication quality
confer" obligation of Fed. R. Civ. P. 26(f) the following key issues are, in essence, un- control, including assurance that the per-
and Fed. R. Civ. P. 16(b). Some underlying changed. Focus on the ability to: tinent information: (1) has not been
discussion topics could include: informa- changed; (2) is a complete copy; (3) was
tion about your client's and opponent's • Demonstrate protectiveness of the client's made by a reliable copying method; and
computer systems, such as their breadth, interests, as you: (4) has had its original copy preserved.
number of users, use of third-party soft- > Preserve attorney-client privilege.
ware, file-naming conventions, email > Comply with preservation obligations. • Helpful advice you or an outside expert
programs, websites, search engines, and > Protect trade secrets. could contribute to the content of a court-
record retention policies and practices. > Lay the foundation for the authenticity of ordered neutral expert protocol, or ques-
> For voluminous electronic databases, ask for records to be introduced into evidence. tions for a deposition of an opponent's IT
specific keyword searches. Lack of agree- director.
ment upon the nature and scope of those • Be reasonable yet tenacious with opposing
searches necessitates court intervention. parties and third parties. Conclusion
> Subpoena an opponent's e-information
possessed by a third party, such as an In- • Use "meet and confer" to resolve, rather As you share with your litigation team the ben-
ternet Service Provider (ISP), web services than exacerbate, discovery disputes. efits of electronic discovery, no doubt you have
provider, or consultant. already felt, or will soon feel, the satisfaction of
• Avoid the expenditure of resources on re- receiving a compliment from a converted liti-
turn trips to the court to revisit the same gator recounting how helpful such technology
discovery issues. tools were in the discovery process.

• Anticipating and Responding to an • Efficiently collect, review, organize, and an- 4 Id. at *29 n.50 (quoting Shira A. Scheindlin & Jeffrey Rabkin,
Opponent's Requests notate the client's records, and records Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to
> Be up-to-speed on the layout of a client's produced by others. the Task?, 41 B.C. L. Rev. 327, 364 (2000)).
computer system, plus the locations and
sources of e-information. • Maintain quality control in team members, 5 Metropolitan Opera Ass'n v. Local 100, 2003 U.S. Dist. LEXIS
> Have, or quickly develop, familiarity with outside providers, and consultants. 1077, *4-6 (S.D.N.Y. Jan. 28, 2003).
a client's information retention/destruc-
tion policy. • Fend off opponents' attempts to bury your Robert D. Brownstone is the
review team with an avalanche of over- Research & Training Attorney
inclusive and/or disorganized records. for the Litigation Group at
Fenwick & West LLP and is
> Notify the client of the duty to preserve evi- 2. Do Your Homework based in the firm's Silicon
dence, the potential categories of discover- Gain comprehensive knowledge of your in- Valley Center office. He
able e-information, and the possible need house tools, tools offered by electronic dis- often writes and speaks on
to cease the usual rotation/recycling of at covery service providers, and the quality of e-discovery issues.
least some back-up tapes. input offered by outside forensic experts.

> Respond promptly to a preservation letter or 3. Educate
request for a preservation order, including Spend extra time preparing and dry-run-
specific objections and inquiries about the ning short, smooth demonstrations of these
basis for the request. benefits of technology tools:

> "[D]oubl[e] back to inquire of the [cli-
ent's] employee in charge of document

! The number of corporate employee email accounts is expected to grow from 131 million in 2001 to 225 million in 2005. (Source: Ferris Research, March 2000) . . .
7

UPCOMING EVENTS IN THIS ISSUE: SPECIAL LITIGATION SUPPORT FOCUS

Applied Discovery will participate in the following • Read what litigation support managers are saying about the challenges
events in the coming months. Please contact us to and opportunities of electronic discovery. See page 1.
register to attend or to request more information.
For information about other electronic discovery • Learn how to share the benefits of electronic discovery with your litigation
events, visit the News & Events section of our team. Guest article by attorney Robert D. Brownstone, Fenwick & West LLP.
website at www.applieddiscovery.com. See page 2.
LawNet 2003: Networking & Education
Boca Raton, FL APPLIED DISCOVERY IN THE NEWS
August 18-21, 2003
San Francisco LegalTech You may have read about Applied Discovery recently in the following publications. Please contact
San Francisco, CA us to request a copy of any these articles, or view them online at www.applieddiscovery.com.
August 26-27, 2003
New York LegalTech "Tips for Implementing Zubulake" "Shifting Costs: Zubulake Helps Clarify
New York, NY by Michael Finley, Esq., Applied Discovery Who Pays for What in E-Discovery"
September 16-17, 2003 Digital Discovery & e-Evidence by Virginia Llewellyn, Esq., Applied Discovery
E-Discovery in Civil Litigation July 2003 New York Law Journal
A BNA Litigation Forum June 17, 2003
Washington, D.C. "Scope of Electronic Discovery Turns on
September 25-26, 2003 Accessibility of Data" "Electronic Discovery Best Practices:
by Julie Locke, Esq., Applied Discovery Reviewing Documents in a Uniform Format"
WHAT'S NEW LA Daily Journal by Sean M. Bell, Applied Discovery
June 20, 2003 LawNet's Peer to Peer
Online Litigation Support Survey May 2003

Take Applied Discovery's online survey Applied Discovery is now a member of the LexisNexis Group.
of litigation support professionals
during September and October, 2003 The information contained herein is not intended to provide legal or other professional advice.
at www.applieddiscovery.com. Be among the Applied Discovery encourages you to conduct thorough research on the subject of electronic discovery.
first 100 respondents, and receive a $10
Starbucks Coffee certificate. © 2003 Applied Discovery, Inc. All Rights Reserved.

200 112th Ave NE Ste. 210
Bellevue, WA 98004

8