Scott Oliver, a partner at California's Pooley & Oliver, had been receiving a lot of complaints from his clients about the high cost of reviewing electronic documents. Feeling pressure to meet the clients' needs, Oliver began looking for ways to make the process cheaper and more efficient.
"We experimented with electronic review systems, but none of them really improved on the basic idea of putting a bunch of associates in a room with boxes of documents," Oliver says.
But then in Spring 2006, he stumbled upon a technology called "tagging" that allows attorneys to attach labels, or tags, to electronic documents. These tags allow users to categorize the documents based on the name of the tag as well as to add their comments to the document without changing the documents' contents.
That summer, Oliver decided to test the technology on a client embroiled in a multi-million dollar IP case. By assigning tags--such as "privileged," "responsive" and "non-responsive"--to sets of documents, Oliver reduced the amount of attorney-review time by about 50 percent.
"It's our clients who reap these time and cost savings, which is why they're so interested in this," he says.
At a time when legal departments must simultaneously deal with rising discovery costs and increased pressure to cut their budgets, tagging is quickly becoming a must-have e-discovery tool.
"Whereas 10 years ago, having a tool that could tag electronic documents was helpful, it is now essential," says Tom O'Connor, a Seattle-based legal technology consultant. "Now if you don't use tags, you're the lost ball in the tall weeds."
Tags are fairly simple to use. When reviewing a set of documents, an attorney can assign each document a tag based on its contents. These tags appear as a list in a database. The attorney can then click one of the tags in the list and the database will bring up all the documents in that category.
The photo-sharing Web site Flickr (www.flickr.com) is a good example of how tags are used. The site displays strings of seemingly random words that users can click on. These words are categories, and when users click on one, they are sent to a page that displays all the photos Flickr users have tagged as being part of that category.
For example, if you click on the word "Christmas," you'll see pictures of Santa Claus, office Christmas parties and people with the last name Christmas.
Functionally, tags are a cross between file folders and electronic Post-it Notes. They behave like file folders in that they categorize documents; but they're like Post-it Notes in that they allow users to add notations. For instance, an attorney could tag a document as privileged and then add a comment as to why it he or she tagged it as such.
"Tags layer information on top of existing information," says Aaref Hilaly, CEO of Clearwell Systems Inc., an e-discovery vendor. "You can take a document and layer it with user-generated information that is stored and readable for future use."
The tags that an attorney adds to a document don't actually change the contents of that document.
"A tag does not alter the document or create multiple copies of the document within the user's system," says Roe Frazer, CEO of CaseLogistix, a Nashville, Tenn.-based e-discovery solutions provider. "If one document has 10 tags attached to it, it's still only in the system once."
For the most part, you can't buy a stand-alone tagging software system. Most are packaged as part of a comprehensive document review or e-discovery system. This is because tags can only be applied to documents once they have been processed, meaning all files--whether e-mails, Excel files or Word files--are in a common format. These files are then placed in a review system so that attorneys can read them.
The process of applying a tag differs from system to system, but there are two frequently used methods. One is the drag-and-drop method, which parallels moving a computer file into a desktop folder. The other is the right-click method, where a user clicks the right mouse button on a document and selects the appropriate tag from a menu.
Oftentimes, solution providers will pre-build commonly used tags into their systems, such as "privileged" and "responsive." These tags are especially useful because reviewers can use them to automatically generate indexes of information, such as privilege logs and production lists.
With the assistance of IT or a consultant, users also can create their own tags. Common types of user-created tags include issue tags, which categorize documents based on topic, and people tags, which categorize documents based on who should review them.
"Depending on the sophistication of the software, tags can automatically pass a set of documents to a certain expert or automatically send certain members of the review team an e-mail saying a document in their specialty has just been tagged," O'Connor says.
Issue tags are especially useful for searching for and retrieving information. For example, if there's a tag called "product liability," a reviewer can instantly pull up all documents marked with that tag. If reviewers are searching for a specific document that deals with product liability, they can narrow their search by only searching within all documents tagged "product liability."
Tagging can also prevent attorneys from re-inventing the wheel with every matter. When a series of similar matters arise that share some of the same documents, reviewers can leverage their work from the initial review for all successive reviews.
Clearwell Systems recently helped a large pharmaceutical client use tagging for this purpose. The company had a problem with one of its drugs that resulted in more than 1,200 lawsuits. After marking certain documents as privileged and relevant for the initial matter, the company was able to take advantage of this information on other similar matters.
"If they had to repeat the same process, it would have been incredibly expensive," Hilaly says. "By applying tags, they were able to rapidly accelerate the process with every case after the first one."
In the future, users won't even have to take the time to apply tags themselves. Currently, vendors are working on developing software programs that can automatically tag documents based on their contents.
"For me it's not a giant leap to start thinking about autotagging," Frazer says. "For example, if a GC sends a communication to the CEO, it could automatically be tagged as 'privileged.' Just think of the review time you could save if you started doing that."