Electronic Discovery: Basic Framework

Although the details of each E-Discovery effort will vary from case to case, there are certain similarities that exists between them. Basic data formats have evolved over the past few years into de facto standards used for the collection, review, and production of electronic documents. The steps taken  to ensure quality are also generally applicable to most cases.  Proper handling of ESI processing should begin with the following basic framework:

ANALYSIS & PRESERVATION:
Technology has created an incredibly mobile society. Aside from the normal desktop or notebook computers, data and evidence can now also be found on PDAs, iPods, Voice-mail, the Internet, flash thumb drives, and much. Keep in mind that data can spread around the globe and are not necessarily tied to business property.

COLLECTION:
Data should always be forensically duplicated wherever possible. Should the metadata, or deleted files of a potential witness ever come into question, a simple copy job would not stand up in court.

REVIEW & PRODUCTION PLATFORMS:
One of the main questions which should be decided prior to proceeding with the review, is the format in which the Review and Production should be made. The current "standard" is to provide TIFF files for production. Depending on the situations surrounding the case (amount of data, cost, and  timing), various other formats may serve better for the review process. Below are some quick pros and cons:

TIFFs: These are the industry formats, and are generally the preferred format for all litigation related software and systems. TIFFs can easily be  reviewed electronically, and bates schemes, along with redactions can be electronically applied with speed and accuracy.  TIFFs' main drawback is  the lack of visual appeal and color. All files are viewed in black and white or grayscaled format.

PDFs: Adobe's PDF format is fast becoming a popular favorite as images. Its key draw is its visual look. It comes in color and is a true representation of what the native document looks like. However,, it is still far from being a simple file to work with. PDF documents, unless used within specific hosting systems, lacks the ability to quickly apply bates numbers and redactions.

NATIVE: Document reviews done in native format can be a great time and cost saver. With no need to wait for processing or cost to convert the images, native format review presents a very attractive solution. And while the process is indeed perfect as an initial culling, it lacks many of the litigation review tools that are necessary for production. Native document reviews are at the mercy of the file type, meaning a lack of redaction and bates numbering tools. Generally, native formats are used for a first review to quickly remove irrelevant documents, prior to a conversion of the remaining documents for a more in-depth production review (though native productions are fast becoming favorites as new technology come into play.

CRITERIA/ISSUES:
Many review issues should be considered prior to the commencement of the review. Among them is clarity on unitization, legal issues, and folder paths:

UNITIZATION: Unitization refers to document break distinction - the start and end page which defines a document. For most electronic files, the document breaks are fairly straight forward - 1 MS Word file equals 1 Document. However, what if the Word document was attached to an e-mail? Would 1 Document = the email and Word document? or would that be considered 2 separate documents? And if one is privileged would both items automatically be privileged? Deciding on unitization ahead of time will give the reviewers and the processors a better understanding of the desired end result.

FOLDER PATHS: The world of paper litigation is familiar with the phrase "in the ordinary course of doing business". The equivalent of a review/production in the electronic world, is the file path. The directory and folder paths of each file should be maintained so that the review and eventual production can be conducted properly, where all documents can be identified as they would in the course of doing business.

LEGAL ISSUES: Another important part of a smooth review is a mutual team understanding of the issues involved in the case. Issues, folders, or tags, should be specified ahead of time and conveyed to all reviewers and data processors. Is the focus on fraud? related to a specific product? a specific date? a specific witness? By clarifying these issues, confusion and delay can be greatly avoided.

FILTERING & CONVERSION PROCESS:
Not all data collected need to be review. Most computer files contain generic system files which can be eliminated from the review process completely as it will have no relevance to the case at hand. Using specific key word or date filters prior to the conversion process will help to eliminate expense and time on the review of irrelevant material. System operation files, internet temp files, spam and personal e-mail can be cut from the review without fear of missing anything important.

ORGANIZATION & REVIEW:
The review process is the bulk of the work during electronic discovery. Make sure your reviewers have been sufficiently trained, have a thorough understanding of the issues at hand, and have a steady stream of documents for them to look at. When organizing documents for review, keep in mind that it is more efficient to assign reviewers similar groups of documents or documents from a single individual. Conversation threads should be kept together if possible, and document groups should be based on subject. This will ensure maximum understanding of the issues, as well as a smooth judgment process. Depending on the skill level of the reviewers, generally a second level privilege review should be in place to do a quick quality check of all reviewed documents.

PRIVILEGE & REDACTION LOGS:
The review databases are not only for flipping through relevant documents. Most systems also help track redaction and privilege information. Consult with your service provider on how to make use of the system information to quickly export a redaction
or privilege log. With a large database of documents, this simple feature can be a real time and money saver.

PRODUCTION & ARCHIVAL:
Keep in mind that production with electronic documents is not a simple process. Lead time and quality checks should be built into the production process. This is especially true if the production is being done by a service provider offsite, processing and mailing time should be factored into all productions.