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Feature Stories Electronic Discovery: New Challenges, New Opportunities Just a few short years ago, the words "electronic discovery" meant something quite different to litigation support professionals from what they mean today. With the proliferation of personal computer usage in the 90s, many discovery documents originated in electronic form. Yet most litigation support departments were still mired in the print-scan-code world. This cumbersome process took documents from computers, reduced them to paper, then converted them to electronic again-as scanned images. A litigation support manager's ("LSM") work often included assessing offshore coding vendors and comparing prices exceeding $1.50 per page just to get the documents ready for review. Today, "electronic discovery" refers to the streamlined process of efficient, cost-effective electronic document review. Online document review tools, high capacity production systems, and worldwide access to electronic documents mean that LSMs now face a frontier rich with new challenges and new opportunities. Changing Times The sheer volume of electronic data involved in today's cases necessitated the rapid development of electronic discovery technology. "Last year, the number of electronic documents we received for review exceeded paper by a large margin," said Odin Medina, Litigation Support Manager at Fried, Frank, Harris, Shriver & Jacobson in New York. "The split was probably 80/20 in favor of electronic documents." Mary Pat Poteet, West Coast Litigation Support Manager based in the San Francisco office of Pillsbury Winthrop LLP, agrees. "Some cases are entirely electronic now," said Poteet. "In the past five years or so we've moved from an average of just 5 percent electronic to the point where paper documents are in the minority." This shift has forced a change in the way LSMs must approach their work. "I've been in litigation support for 12 years," said Poteet, "and I've had to change my thinking quite a bit. We can't touch every document now. So much electronic data is irrelevant and not responsive in the case. It is important to find a way to weed through it all." Out with the Old Many LSMs learned quickly that the old methods of scanning and coding documents were not well suited for electronic data, and most attorneys were happy to hear that the days of reviewing fuzzy scanned images were limited. Some attorneys still cling to the idea of touching each document in paper review, however, and this poses new challenges for LSMs in the world of electronic discovery. "It is sometimes difficult to get attorneys to understand that it's often not best to simply print the documents from computers for review," said David Couzins, Firmwide Manager of Litigation Support based in the Chicago office of Winston & Strawn. "It takes longer and is more expensive." Medina agrees that convincing attorneys to try something new can be a difficult undertaking. "Concerns about costs and turnaround times are typically the issues we hear," said Medina. While some still balk at the perceived expense of electronic discovery, studies show per-page prices for use of electronic discovery technology are about one-third the price of paper discovery. A recent article in Law Office Computing magazine estimates that paper discovery costs an average of $.70 per page, while electronic discovery costs an average of $.23 per page.1 "As more attorneys gain experience with electronic discovery, the question changes from whether to use electronic discovery technology to which tool to use for review," added Medina. Adding Value to the Case Electronic discovery technology offers LSMs the opportunity to add value to the firm's cases in ways they couldn't before. Providing electronic discovery expertise, assisting lead attorneys in managing the progress of review, and helping to set client expectations about costs are all important aspects of the job of most LSMs today. In the early stages of a case, the LSM is often called upon to provide expertise about various electronic discovery service providers and options for review. At this juncture, it is important to know what services will be required in the case. "You have to consider how many steps the provider will be involved with-whether there will be a consulting component up front, whether the client needs assistance with data recovery at the site, how the data will be processed and reviewed, and ultimately how it will be produced," said Couzins. "Different attorneys have different needs," added Medina, "and it is important to familiarize yourself with all the available options so you can provide advice." Medina notes that this is a critical point at which LSMs offer a distinct advantage: "By leveraging your experience on other projects with other attorneys, you can provide comfort to those who haven't done it before." Once the document review is underway, electronic discovery technology enables the LSM to provide important information to the attorney managing the case. "The design of quality online review applications allows us instantly to check the status of review for any custodian," said Poteet. "This makes it so much easier to follow the progress of the case and manage the project. It enables the LSM to gauge how close we are to being ready to produce." Poteet noted that this functionality also enables the LSM to assist in making staffing decisions. "In some cases, including a large litigation or a second request, every day costs the client money. The ability to quickly judge the progress of review tells us whether we should throw more people at the project, consider producing on a rolling basis, or make other modifications to our review plan." As the case progresses, it is critical for the LSM to closely monitor costs. Although the per-page prices are less than for paper discovery, fast turnaround times mean that expenses are incurred sooner. In the days of paper review or the print-scan-code process, discovery expenses tended to trickle in each month. With electronic discovery, the client often receives one bill for the entire case. With foresight and proper management of attorney expectations, the LSM can help avoid surprising the client with an electronic discovery bill. "It can be difficult to estimate electronic discovery costs," noted Couzins, "because you aren't simply counting boxes of paper." Asking your service provider for guidance on this issue is critical. There are a number of ways to help attorneys set reasonable client expectations, even though definitive cost estimates are difficult to make before the electronic data is processed. Many people fear the unknown and resist anything new. By conveying the benefits and ease-of-use such technology offers, LSMs can bridge the gap for attorneys to embrace electronic discovery sooner rather than later.  1 7 Deadly Sins of Electronic Discovery, LAW OFFICE COMPUTING, p. 84, June/July 2003. |
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