Search and Destroy?
The terabytes upon terabytes of data located in emails, hard drives, and on the increasing types of removable media including floppies, flash drives, and even iPods, have produced a data environment in which companies can enter litigation with "mutually assured destruction" if each side insists on obtaining all electronic data from the other side, according to Ian Ballon, partner at Manatt, Phelps & Phillips and author of E-Commerce and Internet Law.
Therefore, firms of similar size tend to go into litigation in a spirit of détente in terms of ediscovery. One side typically won't go overboard in seeking econtent, knowing that doing so will bring retaliation from the other side, Ballon says. However, if one side is much larger, or if it's a case of a consumer or class-action plaintiff that has little or nothing in the way of electronic records that can be sought, then there still can be lopsided ediscovery requests. However, the legal system may reign in these requests on a case-by-case basis, according to Ballon. "The judge may limit the amount of ediscovery or may shift some or all of the cost of ediscovery to the requesting party."
In ediscovery, companies and law firms need to quickly identify any structured and unstructured data relevant to a case, says Mike Kinnaman, VP of marketing for Attenex Corp. So the company's Attenex Patterns software uses a linguistic engine on the back end to search electronic media for nouns and noun phrases. This enables Attenex customers to group together similar documents and to eliminate redundant ones, Kinnaman says.
"Each individual in a lawsuit can have as much as 2 gigabytes of documents," Kinnaman says. "So if you have five people involved, that's 10 gigabytes of information. That can be very costly." Typically, law firms have handled such issues by "throwing more bodies at it," but they are starting to catch up to other industries in using automated systems to managing these documents.
As Steve Lilley, SVP of ediscovery for iLumin Software Services, Inc., a digital archiving software company points out, "digital data is growing at 20% per year, so sometimes the value of the litigation is less than the cost of producing the documentation."
Only 5 to 20% of that documentation typically is needed for a case, Kinnaman adds. So edocumentation systems need to show the user where to find relevant content. Keyword searches aren't enough, Kinnaman adds, because they will still leave the user with mountains of data to sift through. By using noun and noun phrases to search instead, firms can better limit the amount of econtent they will actually review.
An effective content management system needs to capture all metadata as well as all content that appears on computers, removable media, laptops, servers, etc., Fios' Harris adds. A document management system has to do more than just manage econtent such as email, attachments, graphics, etc., that originate as electronic documents, Kinnaman says. The system needs to allow storage and search of econtent in its native format as well.
"In the last five years, there's been an evolution of document management systems," adds Paul Neale, EVP of DOAR Litigation Consulting. This is in part because older document management systems weren't designed to handle email.
Beyond the technology to accomplish the management and discovery of digital documents, law firms and their clients must also have policies for documentation retention. Whereas accounting and financial services companies have some strict regulatory definitions of how long documents must be maintained, the legal profession itself doesn't have similar rules, so that determination needs to be made on a case-by-case basis, says Neale.
Installing records automation isn't enough by itself, Fulbright & Jaworski's Brownlee agrees. She advises law firms and other companies to consider the nature of their business, the scope of federal and state document retention laws they must comply with, and what the company would need to do in the event of litigation. "The system can't rely on email management by a person sitting behind a desk," Brownlee says.
Fulbright designs retention polices for companies on an enterprise-by-enterprise basis. In the future, Brownlee expects firms to have a senior level executive in charge of records retention policies.
The better the retention policy, the more efficient the retrieval of appropriate edocumentation. Efficient retrieval is essential or can cost an organization millions of dollars in searching for materials that may have been sent weeks, months, and even years ago, says Lesley Taufer, president of tech consultancy Boulder Corp.
Thus, companies need to have an automated system to date-stamp email and to automatically destroy it after a certain period of time—determined by each individual firm. "You need to advise clients, including law firms, on how to structure document retention policies," Neale says. "You'd be surprised to learn how many don't have a policy." Lilley from iLumin recommends that those policies include rules-based definitions of how to capture information from different sources and what to do with it upon receipt. Controlled access is another important element for these systems.
Of those law firms and companies that do have a document retention policy, the majority concentrate more on document retention than deletion, according to Neale. "As storage costs have come down, the inclination is just to buy more storage. They have a right to be concerned about improper destruction of documents."
The information may come in from various members of the legal team and other sources, meaning several different copies of the same file. So Neale recommends a system that identifies unique documents and eliminates duplicate material. "You don't need 5,000 copies of the same thing; you need only one," Neale says. "You need a system that streamlines information as it comes in. Every document needs to have a ‘fingerprint' that makes it wholly unique." That tag should include information about the document including the desired retention period.