E-discovery, or the discovery of electronically stored information, is creeping into all of our lives. In the beginning, e-discovery was something limited to patent/trademark litigation, securities cases, class actions and/or catastrophic loss cases. In other words, it mainly arose in high cost litigation. Since the adoption of the Federal Rules of Civil Procedure and State Court Rules dealing with e-discovery, attorneys have begun to request e-discovery even in cases with values that are far less than the cost of the discovery itself. Even though e-discovery can be a very expensive and time consuming process that can add thousands of dollars to a litigation budget, this article seeks to provide information on recent developments in technology that can help reduce the cost.¹

Traditionally, litigators have taken a broad approach to discovery to ensure a key piece of evidence is not being hidden by the other side. Therefore, litigators tend to turn over every stone. This method of discovery practice is not without some basis. Many attorneys continue to play the game of hide and seek; that is, I’ll hide the evidence and you have to find it. However, as seen in the Qualcomm case, this game is an ever-growing risk (Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B(BLM) Doc. 593 (S.D. Cal. Aug. 6, 2007); see also Introduction to e-Discovery: New Cases, Ideas, and Techniques, Losey, Ralph C., 2009.) On the other hand, turning over every stone just isn’t cost effective, even in most bet the company cases. E-discovery costs average between $500 and $2,000 per GB to collect/preserve, process/cull, and produce. Therefore, cooperation and proportionality are the keys to successful e-discovery (The Sedona Conference Cooperation Proclamation, http://www.thesedonaconference.org; Federal Rules of Civil Procedure Rule 26(b)(2)(C)(iii); Petcou v. C.H. Robinson Worldwide, Inc., 1:06-CV-2157-HTW-GGB, 2008 WL 542684 (N.D. Ga. Feb. 25, 2008)(Judge Brill); Implications of a “Keep It All” Data World, Bennett, Steven C., 81-Feb N.Y. St. B.J. 42 (Feb. 2009)).

1. Autonomy Corporation, PLC - On June 1, 2009, Autonomy Corporation, PLC introduced a “meaning-based” media management solution, Virage MediaBin 7. “Virage MediaBin 7 revolutionizes Rich Media Management by deriving an understanding of audio, video and images and eliminating costly and inefficient manual tagging thus enabling organizations to automate rich media management like never before and derive genuine ROI [return on investment].” (http://www.interwoven.com)

2. Kazeon - In May 2009, Kazeon “released their fourth generation e-discovery software. Opening it up to the likes of corporations, legal service providers and law firms, working smarter and faster got easier. Continuing in the same direction, Kazeon recently announced the arrival of the Kazeon e-discovery Domino Manager. The Domino in question refers to IBM’s Lotus Domino, which provides enterprise-grade e-mail, collaboration capabilities and a custom application platform. With Kazeon eDiscovery Domino Manager, companies can implement a streamlined and transparent workflow for litigation responsiveness. By combining Kazeon’s e-discovery solutions with Domino, direct native connectivity can deliver comprehensive and defensible e-discovery across the enterprise.” (http://www.cmswire.com)

3. StoredIQ - On August 24, 2009, StoredIQ,“[r]esponding to organizations’ needs to assess and analyze data earlier in the e-discovery process, . . . announced the immediate availability of classification-based security. StoredIQ’s latest innovation delivers precise control for granting access to potentially responsive data for audits, investigations and e-discovery requests based on content classification, not just physical location, such as server, share or directory structures. This new approach to access control allows companies to create a classification that represents the data to be reviewed by the legal team prior to finalizing collection and preservation decisions – without having to move data or temporarily change the security privileges on each system for each file or email that needs to be reviewed. Historically, an organization’s IT department would have to copy a set of data from production systems and place them in a temporary storage location, where security access was then provided to the appropriate legal team.” (http://www.storediq.com)

4. Exeros, Inc. - On September 2, 2008, Exeros, Inc. “an innovator in cross-system data analysis and quality software, announced the launch of Exeros X-Profiler (pronounced cross profiler”), a full-featured data profiling tool that also performs cross-system data overlap analysis.” (http://www.b-eye-network.com)

5. PSS Systems - On April 21, 2009, “PSS Systems . . . announced . . . new software bundles designed to provide Global 1000 companies with a complete litigation and EDRM solution in a single, cost-effective offering. The company announced two bundles: the first combines Atlas Litigation Communications and Collections (LCC), the industry standard legal holds and collection system, with Atlas Discovery Cost Forecasting (DCF) to help corporate counsel control both cost and risk in their litigation workflow. The second bundle covers the corporate EDRM spectrum and includes Atlas LCC, Atlas for IT, Atlas DCF and Atlas EDRM which combine to help companies address legal information management, legal holds and discovery across the enterprise. . . . Because the Atlas products share a common enterprise governance map and a single code base, companies can immediately synchronize legal, IT and records management functions across the enterprise to reduce risk, defensibly dispose of data, and materially reduce costs.”(http://www.pss-systems.com)

6. eMag Solutions LLC - On July 30, 2009, eMag Solutions LLC introduced eMag PreVu 3.0. PreVu 3.0 “is a hosted raw data culling application that allows corporations and law firms to sort, search, and filter electronically stored information.”(http://www.emaglink.com)

7. DISCO - Disco is a “tool which combines a machine learning technology (CategoriX) and advanced multi-touch interface capabilities to not only address the usual cost, time and accuracy issues in document review, but to also facilitate the work of the review teams by capitalizing on the intelligence of the reviewers and enabling collaborative work.” (DISCO: Intelligent Help for Document Review, O’Neill, Jacki; Privault, Caroline; Renders, Jean-Michel; Ciriza, Victor; and Bauduin, Gregory; Xerox Research Center Europe).

8. Interlegis, Inc. - On October 29, 2008, Interlegis, Inc. launched a review tool, Discovery360, which claims to have a native file redacting capability. “InterLegis’ flagship e-discovery culling and review application, now allows users to redact files in their native format to save time and simplify the document review process.” (http://www.interlegis.com)

9. Clearwell - On August 17, 2009, Clearwell announced Version 5.0 of its e-discovery platform. “Unlike prior versions which focused on processing, early case analysis, and first-pass review, this release extends Clearwell’s capabilities in two directions: upstream, by adding pre-processing; and downstream, by adding document-by-document review and production. . . . [Until now,] a typical e-discovery process today may involve as many [as] 4 different tools: one for filtering by custodians or date range, another for de-duplication and keyword search, another for load file creation, and yet another for review and production. . . . The only solution is to have a single product that can manage collected data from soup (filtering / pre-processing) to nuts (production). Prior to today’s announcement, that product did not exist: there was no single, integrated product that could do everything from process data to review and produce it. And that, in summary, is why Clearwell is releasing Version 5.0.”(http://www.clearwellsystems.com)

10. CaseCentral - On June 22, 2009, CaseCentral announced the release of the CaseCentral Early Case Assessment (ECA). CaseCentral “is the industry’s first ECA product to seamlessly integrate with active litigation review and production software. CaseCentral’s integrated, multi-purpose e-discovery review platform enables clients to start with ECA and extend through analysis, review, production and post-production re-use, facilitating collaborative assessments of new case merits and liabilities, application of first pass review, and real-time transfer to active review if required, all at a price point that shatters the current ECA pricing model. . . .Many of the current Early Case Assessment tools are designed only for the matter at hand. They also frequently require a data export to another tool for active review,” said George Socha Jr., Esq., founder of Socha Consulting. “An approach that treats ECA as an integrated part of the overall review and analysis process has the potential to improve both transparency and consistency, decreasing risk and benefiting both inside and outside counsel.” Also of note, “[p]ricing for CaseCentral early case assessment starts at $10/GB/month or $120k/TB/year, which is two orders of magnitude less than competitive products, enabling clients to cost-effectively consider much larger data sets for ECA during first pass review. CaseCentral ECA pricing also takes away unpredictability making it easier to budget for ECA activities. Contemporary early case assessment tools charge clients a significant premium for perceived value, often starting at $100k/100GB, which equates to $1,000/GB.” (http://www.casecentral.com)

11. FTI Consulting, Inc. - On August 24, 2009, FTI Consulting, Inc. announced “the launch of Ringtail QuickCull, a new pre-configured hardware and software package for e-discovery. . . . QuickCull enables corporations to cull and analyze data on-premise prior to review by outside counsel, providing earlier insight into data and dramatic e-discovery cost reduction. . . . Upon installation, users can immediately begin indexing data and quickly identify duplicate files, which are automatically tagged for efficiency. Hidden files and columns, tracked changes and other modifications are also available to view. Reviewers can search for documents using a variety of search methods, including keywords and complex Boolean queries, which can also be restricted to specific metadata fields. QuickCull then presents documents for preview, allowing reviewers to mark and tag individual documents in preview mode. These markings are saved for export into processing, review and analysis tools via the EDRM XML standard, an industry standard for which FTI took a leadership position to develop. QuickCull is also Unicode compliant to support international requirements.” (http://www.fticonsulting.com)

12. Integreon – On August 24, 2009, Integreon announced “the launch of its eView™ 3.0 platform for hosted document review. eView is Integreon’s marquee offering for efficient workflow management and productivity tracking of complex attorney document review. The new eView release enables legal professionals to better manage the risk of electronic discovery and lower the cost of document review, which is the most expensive stage of e discovery. New concept search and document clustering use advanced mathematics to allow users to find similar, related, and relevant documents based purely on the concepts discussed within those documents; and the representation of the results in cluster formation allows users to quickly gain an understanding of the various topics the data contains prior to performing a doc-by-doc traditional linear review. Production and privilege log management further ensures that only those documents targeted for production are actually produced.” (http://www.integreon.com)

13. Concordance - On May 28, 2009, Lexis-Nexis released Concordance 10. “The big news for this release is the complete redesign of the database structure to include Unicode compliance, meaning Concordance can now display characters in foreign languages (assuming users have the appropriate Windows language packs installed). Unicode compliance seems to be gaining importance among litigation support software developers as evidenced by its inclusion as a “feature” in more and more products. I think this is a step in the right direction with regards to making the tools we use more universal, thus allowing a more diversified user base. . . . [A] few more new and notable features included in Concordance 10: 1) the addition of integration support for Electronic Legal Software's E.L. Native Review tool, which allows users to review a document in its original format; 2) strengthened encryption for database and user passwords (which can't be bad); 3) the addition of support for importing Microsoft Office 2007 documents.” (Written by Michael Harte, http://www.eden-hub.com)

14. Daegis - On June 21, 2009, Deagis announced DocHunter 5.0. “DocHunter 50 now integrates best of breed culling tools with its powerful review platform. . . .DocHunter 5.0 allows for the cost-effective culling of data by file type, file extension, email domain, file path, date restriction, and full-text or metadata.” (http://daegis.com)

15. Digital Mandate LLC - On August 1, 2008, Digital Mandate LLC released Vestigate, . . . “a human-based decision-making review software platform that accelerates access to key documents, provides measurable accuracy to ensure that relevant documents have not been missed, and significantly reduces project cost and time. . . . It is a process that leverages what humans identify as relevant on one document to tag multiple documents.”(http://www.digitalmandate.com)

16. Wave Software - On June 23, 2009, Trident Pro added interactive searching to its product. “With interactive searching, a detailed report will be created to include the terms that were searched and how many times the search terms were found in the data.” (http://www.discoverthewave.com)

17. CT Summation - On August 25, 2009, CT Summation premiered its “next generation” iBlaze product and partnership with Rosen Technology Resources. “New features of iBlaze 3.0 include: Redaction Enhancements: Search for redacted documents, quickly review redacted language and globally redact the same portion of each image supporting a faster redaction workflow. Condensed Transcript Printing . . . . Production Enhancements . . . Near-Native Document Viewer . . . . Duplicate Indentification . . . . TIFF on the fly . . . .Three RTR products are now integrated with iBlaze, including ALCoder ™ (autocoding application), ALFind™ (near-duplicate indentification tool) and conceptual™ (concept search application) . . . .” (http://www.earthtimes.org)

There are three techniques for improving the process of automating analysis and retrieval of electronically stored information presented by Kevin D. Ashely and Will Bridewell in a recent article for the ICAIL 2009 Global E-Discovery/E-Disclosure Workshop. (Emerging AI & Law Approaches to Automating Analysis and Retrieval of Electronically Stored Information in Discovery Proceedings, Ashley, Kevin D., and Bridewell, Will ICAIL Global E-Discovery/E-Disclosure Workshop (2009)). The techniques they suggest include machine learning, hypothesis ontology, and social network analysis. In machine learning, “examples of documents that have been classified according to the theory of relevance can be used to train an automated classifier to identify and classify other similar documents.” (Id. at page 5). “Hypothesis ontology comprises “a vocabulary of object (agents) and processes”, associated with recurrent areas of interest in e-discovery such as knowledge transmission in corporate or commercial settings and define[s] the relationships in which these entities can participate.” Id. at page 6). Finally, social networks involve creating “graphs representing probable social interactions among a group of people”. . . and “could enable a system to infer which individuals most likely communicated information or had knowledge relevant to a query.” (Id. at page 6, citing Schwartz and Wood, 1993; Agrawal et al, 2003).

The end user should be wary. There are many new products on the market. Some will prove to be very valuable while others may not. However, as e-discovery impacts more and more litigators, the search for cost effective and defensible methods of preservation, collection, review, and production must be found. The key is to first define the problem you are trying to solve or the objective that you are trying to achieve. This will allow you to articulate the specific requirements that you have for the technology solution, which will serve as a basis for comparing the available offerings. When possible, you should also “test drive” the proposed solutions. Marketing messages naturally highlight a product’s strengths while minimizing or omitting altogether its weaknesses-and all products have strengths and weaknesses. Actually exercising the technology in the environment in which you need it to operate is the best way to find out if the strengths actually help to solve your problem and the weaknesses can be managed.

¹Federal Rule of Civil Procedure 26 (f)(3)(C) now requires attorneys as early as the meet and confer conference (that is prior to the scheduling conference) to discuss “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced”. Rule 34 (b)(2)(D) and (E) give specific guidance on how to respond to a request for Electronically Stored Information in Discovery and in what form it should be produced. Rule 37 (e) provides a safe harbor for circumstances in which ESI is lost as a result of the routine, good faith operation of a document retention policy.
²Zubulake v. UBS Warburg LLC (Zubulake V) , 229 F.R.D. 422 430 (S.D.N.Y. July 20, 2004);
Micron Technology, Inc. v Rambus, Inc., 255 F.R.D. 135 (D.Del. Jan. 9, 2009).
³ACORN v.County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009);
Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 620 (D.Colo. Mar. 2, 2007).

Home | Firm Information | Firm Attorneys | E-Discovery
Client List | Legal Links | Contact Information