Read the May 2011 e-discovery feature, "Keeping Up With Evolving E-Discovery."
What are the pitfalls counsel should look out for when bringing e-discovery in-house?
Joe Howie: At the E-Discovery Institute, we did a survey on duplicate consolidation. The idea is that the reviewers look at only one copy. If an email goes to five people, just look at one copy. Don't pay five lawyers to review it five times for all kinds of reasons--cost, coding consistency, confidentiality of data, all sorts of reasons. And of course, the usual way to identify duplicates is through hash values. The same email stored in different email packages will yield different hash values because of the differences in the way the email is stored. Even different versions of the same software will yield different hash values. If in-house counsel aren't aware of these differences, they may think they're doing duplicate consolidation but they'll fall short.
When it comes to e-mail, what do counsel need to understand going into records retention and duplicate consolidation?
John Martin: As far as consolidation that corporations do, the driving force and factor behind that is that different cases have different life spans. Litigation holds may be in place for years in some cases. During that timeframe, what I've seen from the different things I've worked on is that you wind up having a company who acquires another company and, of course, the two IT infrastructures are totally different. They may have different e-mail systems or different versions of the same system. Because of the differences between versions of Outlook, the same message in Outlook 2003, is stored differently than that message in Outlook 2007 so what we've been able to show is that if you understand those differences, you can base what you're doing on the standard by which those messages are sent everyday because they're all transmitted in the same language. That's why all these different email clients can talk to each other.
How are these standards determined?
JM: In messaging, it's ITEF which is the International Technology and Electronics Foundation, an international standards body just like the ISO or W3C or any of these other ones. Basically what it governs is how messages are sent. So all messages sent everyday between all these different servers and different applications that read the messages are all sent in a standard format. So if you received the same message in Outlook and in Lotus Notes, in Lotus Notes it's probably going to have a pretty little line down the left hand side because, if you've ever seen notes, it has a little graphic. That little line was never part of the original message. The trick is to get back to the original message and to set it up so that when you're preserving information, you're preserving the message, which is going to be the same and easily identifiable regardless of what client you happen to be looking at it with. It's just like regular mail. There's an envelope that determines routing and how it gets where it's going and then there's the message the envelope contains. The message doesn't ever change. They may be displayed differently, but those differences are added by the email client after the messages are received. But from a purely e-discovery standpoint, make those messages different even though they are the same message. So the trick is to store the original message, use that as your archival standard and then end result is you will wind up reducing your overall cost. It's a very simple thing that's standards based and if you take that into consideration, the end result is that you get to spend hundreds of thousands or millions fewer dollars per year.
JH: If you're an e-discovery vendor and you're getting paid by the gigabyte, you may know about this,but you may not say anything to corporate clients about it. Or if you're a law firm and you're charging $200 an hour to review this stuff, if you really streamline it, you could be cutting your revenue by 70-80 percent. So, I think it's a point that sort of uniquely resonates with in-house counsel because they're the ones cutting the check. And it's the kind of issue that once you figure out how to handle it, you can use it in all your cases so there's a huge return on investment.
Are there any special considerations when it comes to e-discovery and privileged documents?
JM: Lots of companies have inventory control systems. You should use the hash as the inventory control numbers and when you deliver it to outside counsel, include that hash as part of your delivery and say, "Okay when you do your privilege review on this case, we want a list of all of our hash values that you determined were privileged and the reason for the privilege." Privilege is a pretty cut and dry thing. There's not a whole lot of ambiguity to privilege, but if the corporation keeps that kind of a control system, then say there were 30 custodians in case one and then there's another case six months later that has 70 custodians, 20 of which were in the original 30 from case one. Well now you can add an additional filter for what you hand out to outside counsel. Just doing that one thing avoids lots of legal fees externally and all the processing costs that go along with handling electronic discovery volume because now you know what the privilege is and you can just generate a privilege list for those things. Then, when case number two runs through, you continue building that list so that every time you hand out data for a new case, you're handing out less and less privilege review. It's just one simple thing to do that creates some pretty significant savings and it also speeds up your production process because your outside counsel are dealing with less data.
How much privilege review should companies do in-house?
JM: You have to decide on your comfort level as a corporation. There are companies in the world, including one that makes all of my favorite computer products and rhymes with "Snapple" that do all of their privilege review in-house. They do not allow outside counsel to do privilege review. When you bring it in, a lot of people focus on the technology and say "Oh we're going to this or that platform" and that's great, but you're falling into a marketing trap by doing that. What you need to do is back up and think in very simplistic terms, what are we comfortable doing?
What do you think is the most important thing for in-house counsel to keep in mind when bringing e-discovery in-house that counsel are likely to overlook?
JM: I would say the biggest thing that they overlook is probably checking what's available in the public domain in data that's outside the company's control for production. As an expert witness, I've gotten companies sanctioned because their counsel went on the record saying "We don't have this" and then I found a press release from the company that sold them the unified messaging system that says not only did they have it, but when they put it in and all the great benefits the company gets from having this system. You really need to know what's out there about you. It's not just about what you control; it's about what others can see.