Taming the Chaos: Preparing Records for Discovery

On December 1, 2006, U.S. businesses woke up to a daunting new world of document storage and retrieval created by federal regulations. The rigorous rules challenge businesses to maintain their records for years, yet make them easily retrievable in case of litigation. However, the amendments to the Federal Rules of Civil Procedures (FRCP) need not bury an organization in a sea of servers and paperwork. A successful strategy can not only link document management and e-discovery, but create a significant return on investment.

With nearly five exabytes (one quintrillion bytes) of business e-mail exchanged annually, e-mail is and will continue to be one of the most prevalent types of records in need of management.

Fortunately, organizations looking to add e-discovery capabilities to existing records management solutions in order to comply with these new e-discovery regulations have options.

Your Records are Managed – What’s Next?
Few things have sped up the records management digitization progress as mandated government regulations have. Some of the first laws on the regulatory block included HIPAA and Sarbanes-Oxley, which came on the scene earlier this decade. Just as corporations were turning the corner in obtaining compliance on these fronts, along came the e-discovery regulations of 2006. Most distinct about the FRCP laws is the short timeframe allotted to produce what often amounts to multiple years’ worth of data.  

Given these early regulations, many organizations are taking the necessary steps to implement a comprehensive records management system. This implementation is considered stage one of a complete Discovery program. What these companies now need to do is to turn their focus to what happens after a discovery order is given.

Stage two of the process, e-Discovery, is the electronic processing of data identified in the discovery order. Within each document, the metadata and text must be extracted accurately and completely. During this stage, the vast amount of data can also be culled down based on the specific terms of the discovery order. Trimming down the information will help limit the actual documents that need to be reviewed, while still maintaining defensibility.

Once the data has been identified – organizations are ready to implement stage three of the process, Discovery Management. This is when document review and production begin. All documents identified in stage two as admissible in court must be reviewed and coded for use in court proceedings. Often, court deadlines are imminent and lawyers find themselves under the gun to meet due dates while also trying to absorb and process the millions of pages of documents for their case. In order to meet these deadlines, and still have time to prepare for the actual trial, lawyers and their organizations need tools available to allow them to search, find, catalog and manage the entire review cycle – typically involving tens, if not hundreds of attorneys.  

Step by Step
Within the implementation of stage two and three are several steps companies must consider when implementing a complete discovery program. The following outline details these steps for corporations working with an e-discovery partner:

• Assessing – This initial step is also one of the most time-intensive, as it involves the identification of all relevant data (both electronic files and paper documents).
• Harvesting and Collection – This includes the imaging and file formatting of all digitized hard copy documents and electronic data, including e-mail.
  
• Coding – During the coding process, a bibliographic document indexing system is implemented in order to apply a layer of consistency throughout all file formats.
  
• Repository ­– The repository is the Web-based document review system that is hosted on a remote server and accessible for review at all times of the day, anywhere an Internet connection is available. Once logged on, the user can organize, search, cull, review, annotate and produce documents and transcripts online, with real-time updates. Moreover, this repository is locked-down to the highest security protocols to protect vital data.
  
• Reviewing – At this stage, data experts cull and filter through the TIFF and native files to identify relevant and privileged documents.
  
• Production – On the production end of an e-discovery system, numbering and branding can be added to the data. Users can then output data in electronic or hard copy form. This is also the area where administrators can access production tracking and reporting, in order to manage the chain of custody of individual records and ensure that all relevant documents have been scrutinized.

By utilizing the above process in tandem with an enterprise records management system, an organization can utilize the Discovery Management system’s reporting functionality to prove that they have, in good faith, done everything within their power to ensure the accuracy of any record in question.

Chain of Custody
In dealing with such a vast amount of documents, companies continually face the risk of not being able to provide a chain of custody, or audit trail, for specific records should they be required by the court to do so. The penalties of non-compliance are real, with prison time a distinct possibility for company executives.

By not having a comprehensive plan for the systematic management of physical and electronic records from discovery through production, companies can face myriad problems during litigation. Such challenges include:

• Unable to proactively or defensively locate “smoking gun” content, possibly within e-mail systems.
• High costs and difficulty in meeting regulatory, discovery, and litigation deadlines.
• The proper and complete processing of metadata from electronic files and making this information available for attorney review.
• The audit trail of document review as to who reviewed and coded the document as well as when.

The value of proactively managing the risk for issues like these is evidenced by recent court activity. In a wrongful death class-action suit, experts estimated that the cost to restore e-mails from a pharmaceutical company’s backup tapes to satisfy the discovery process could go as high as $1.75 billion. Facing a hostile court, the defendant company settled for over $3 billion dollars.

This example can calculate the cost in dollars and cents, but there is more at stake. A company’s brand value and corporate standing are also on the chopping block, so it only makes sense for organizations to do everything possible to preserve their wallet and neck, and ensure that their CEO’s next striped suit is not of the black-and-white variety.

Search Technology
E-discovery technology, like the corporate litigation arena itself, is evolving at a rapid pace. While legal scholars wrangle with the latest regulations and statutes, technology vendors vie to find more efficient methods to manage the discovery process. Advanced search technology is now a hot topic among vendors and litigators alike, as it holds significant promise to yield more valuable information quickly. 

Despite much study on improving searches and search criteria (such as searching by a specific date range, keywords, etc.), once data gets into the discovery management arena, lawyers will want to pinpoint a certain group of documents. For example, documents that have some type of topical relationship to each other, regardless of whether it was on the same subject, will need to be grouped together and reviewed as a set. 

One of newest technologies is called concept searching, an important new arrow in the quiver of e-discovery solution providers. But the technologies to implement concept searching differ in approach and output. Two well know methodologies used are Bayesian and Probabilistic Latent Semantic Indexing. Using each technology individually narrows the scope of what can be grouped while also taking control out of the attorney’s hands in what should be included. Combining the two technologies and then allowing the user to have input into the exact keywords utilized to produce the final search results is a more powerful and complete implementation of advanced searching practices.

Other advanced searching or document grouping technologies include cataloging and contextual searching. Unlike traditional enterprise search tools, these technologies will not only look for the keywords contained in a query but also the context of the document those words contain. Current data-mining programs typically end up searching only 40 percent of all the documents that are relevant, because the keywords are too limiting. New technologies are more accurate because they delve into documents, extracting the concepts and the relationships among them.

How document technology is used, how documents are associated together, and how documents are categorized, and supplied to attorneys, is critical to the ultimate success or failure of litigation. It is imperative to provide those defending your interests with what they need to succeed.

It’s Not a Matter of if but WHEN
With increasing litigation and the multibillion-dollar costs associated with e-discovery, companies need to be prepared if and when litigation takes place. It’s time now for organizations of all sizes to place e-discovery in the ranks of other business functions including IT, operations, security, ethics and finance.

When implementing an e-discovery system, a holistic approach is the only sound strategy for success. Companies should identify a solution that will take into consideration the business culture, process and technology currently available to create a valuable program. This should include a policy for the enterprise that will comply with all legal requirements, fit within the organizations’ records management business needs, and provide overall accountability. This includes taking into consideration the location of all media defined as a record within the enterprise - from paper and electronic records to e-mail and microfilm.

Sound processes built on easy-to-understand, accessible policies and procedures are critical for ensuring e-discovery compliance and mitigating risk. Moreover, while technology is important, it only accounts for a portion of what is required to implement and maintain a complete Discovery Management solution.

With the Electronic Data Discovery market expected to exceed $4 billion by 2009, the companies who will achieve the greatest return on investment on their part of this $4 billion will be those companies who successfully link document management with e-discovery. Will your organization be a part of this successful contingent, or languish in the ranks of those waiting to pay out?