The Tipping Point for Modern Litigation

Of the many steps involved in litigation one of the most important is the discovery phase. Discovery is part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. As more and more content is created and stored in electronic format (emails, WORD documents etc.) legal discovery of electronic content (eDiscovery) has taken center stage as one of the most challenging and unavoidable tasks for organizations. U.S. corporations will spend more than $10 billion in 2008 largely to service providers and law firms to assist them in their eDiscovery projects.

In its third annual survey of corporate litigation trends, Fulbright & Jaworski L.L.P found that U.S. companies face an average of 305 pending lawsuits at any one time. For large U.S. companies--those with $1 billion or more in annual gross revenue--the number of lawsuits soared to 556 cases, with an average of 50 new disputes emerging each year for close to half of the companies. Given the high stakes related to eDiscovery, it is not surprising that internal counsel and CIO teams are increasingly aware that they must make changes in order to address the growing demands. Traditional reactive processes and linear review of electronic documents are rapidly becoming impractical.
A relatively recent innovation that holds great promise to enable organizations to better control the cost and reduce risks in eDiscovery is automated analysis. Historically eDiscovery has been a largely manual process conducted by armies of lawyers plowing through mountains of electronic documents. With the continued explosion of electronic data the future of successful eDiscovery lies in applying sophisticated automation to the task. The possible cost savings from implementing such solutions are compelling.

According to a December 2005 Gartner, Inc. report, "The Costs and Risks of eDiscovery in Litigation," organizations that have not "adopted formal eDiscovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services" through the year 2010. Adding to the urgency to find more accurate, efficient and cost effective ways to perform eDiscovery are the important 2006 amendments to the Federal Rules of Civil Procedure (FRCP), which address all aspects of discovery of Electronically Stored Information (ESI) evidence. Specifically the amendments say that:

• ESI is discoverable (Organizations must preserve and produce ESI)
• Lawyers must understand how to request, protect, review and produce ESI
• The courts have the right to act on abusive or obstructive electronic discovery

The first generation of eDiscovery tools and methods provide some productivity enhancements over manual methods but they are extremely limited. First generation solutions tend to be narrow and disconnected from one another each solving only one element of the eDiscovery work flow such as basic email archiving, or keyword search.

Today a select group of technology providers are supplying second generation tools and methods that draw from the most advanced developments in information retrieval, natural language processing, machine learning and artificial intelligence to accomplish extremely powerful and cost effective content analysis integrated into a full document review and work-flow suite required to support the most expensive phases of eDiscovery.

These capabilities enable early case assessment through guided analysis to quickly uncover the who, what, when, where and why of an eDiscovery project. Email threads can be deeply analyzed to reveal the full context of key communications. Sophisticated, yet simple to understand, graphical representation of patterns in communication over time--by topic, time range, and person--enable the identification of relationships between key time periods, participants and events.

Long term, these second generation technologies offer an even more exciting opportunity to tame the litigation beast through proactive efforts. The best of these solutions can be applied today to gain early insight into electronic data. Leading law firms, regulatory agencies and major corporations are improving their legal strategies, reducing cost and placing defensible limits on data archiving and collection by conducting sophisticated proactive analysis.

Here are some of the things to look for when evaluating proactive eDiscovery solutions:

• Advanced email analysis that allows you to view any email in its proper and complete context by seeing its associated position within an entire email thread and related threads. This will enable you to uncover evidence overlooked when emails are viewed out of context.

• The ability to organize content by concept, threads, custodians, timeframes and many other categories.

• Being able to process raw data rapidly for a "first look" with full analytic capability.

• Analyze sample data to quickly develop a "meet and confer" strategy.

• The ability to identify privileged email and documents at the macro level.

• An easily deployable Web-based application--easy to use and easy to share.

• A flexible business model that allows users to bring the technology in house or to use the software as a service.

• A supplier who offers a full range of best of breed practices, technology, consulting and hosting to provide a solution that can be perfectly tailored to your needs.

Ramon Nunez is president at MetaLINCS eDiscovery business unit at Seagate Services.