Wednesday 20 June 2012 by Glen Greenland and Ian Smith

In today's digital age we are faced with numerous issues related to various types of e-disclosure matters. Be it a litigation dispute, regulatory enquiry or an internal investigation there are common obstacles which need to be addressed at each phase of the e-disclosure life cycle. For instance, a project may span multiple jurisdictions where local expertise with specific procedures are not readily available. Alternatively, the scope of a project may span a wide timeframe where legacy media devices and software applications present challenges to restore and extract the required information.

No two matters will be the same and there is not an exact science behind the processes. However, there are a number of key considerations which generically apply to each matter. This includes but is not limited to the following:

• How to efficiently manage ever-increasing data volumes;
• Knowing where to look for all potentially relevant data;
• Collecting and preserving data in a forensically sound manner to avoid the loss of dynamic data;
• Which technologies and external/internal expertise to utilise;
• Identifying and managing new data sources and structured data systems such as cloud computing applications, Microsoft SharePoint sites, accounting, bank trading and procurement systems.

The time, effort and fees associated to the challenges of processing, analysing and reviewing varying and large volumes of data places a focus on the sophisticated applications aimed at document culling, and technology assisted review. With the framework outlined in Practice Direction 31B, the courts have a growing acceptance of technology to gain control of edisclosure processes. Many of these technologies not only reduce costs but also improve accuracy and efficiencies with repeatable and defensible processes.

Managing new data sources

Although familiar sources of data such as email, PCs and network shares remain the most significant in terms of volume, new data sources pose a growing challenge in many matters. The use of cloud-based solutions is expanding each year as new options become available such as Google Docs from Google and Office 365 from Microsoft. These services host and enable access to data on remote servers via a web-browser interface and although copies of documents may be cached or duplicated to a local computer the majority of documents spend their whole life in the cloud. If such documents are to be included in an e-disclosure exercise a process must be crafted for the service that will secure not only a copy of the documents themselves but of their associated meta-data (last change date, author, etc), in a sound and defensible manner.

Microsoft SharePoint combines many characteristics of cloud-based services and document management systems and may be hosted in a company's data-centre or remotely by a service provider. The key challenges with SharePoint data are to identify and extract responsive data in a defensible manner and to do so in a way that retains the rich layer of SharePoint specific meta-data fields. For example, using the native indexing and searching ability of SharePoint holds risks and extracting all data relating to a custodian may be more appropriate. Once extracted, keeping the SharePoint meta-data linked to the corresponding documents through to review is key to maximising the value of the data.

The growth of new data sources reflects the general growth in both the volume and diversity of electronic data making it more important than ever to understand at the outset of a project where responsive data may potentially reside and how to preserve it efficiently and defensibly.

Maximising efficiency and cost effectiveness

The stringent rules governing e-disclosure emphasises the need for communication between all parties throughout the duration of a project. Ultimately the objective is to agree on a realistic and sensible approach where the most efficient and cost effective resources are leveraged to balance proportionality.

Whether internal or external resources are utilised, a strategic plan will be required to streamline and control the scope of the exercise through the use of technology, systematic methods and professional expertise. Formalising your strategy at the earliest possible stage will add significant benefits as a lack of coordination can prevent costly and unnecessary errors and rework. By way of an example, cloud and SharePoint systems will require coordination with industry experts to ensure that all potentially relevant data is appropriately captured and extracted in the most effective manner.

The technologies and associated best practices available today can significantly reduce the cost of an e-disclosure review. Culling tools prove to be extremely effective at filtering irrelevant non business documents, duplicative data and material which is non-responsive to keyword terms. With the appropriate filters and culling procedures applied a focused set of potentially relevant documents can still require significant effort to review. A majority of e-disclosure review applications are equipped with a series of utilities to facilitate and expedite the review process. Examples include:

• Concept Clustering - Review document clusters based on similarity of content;
• Predictive Discovery - Combining attorney expertise with machine classification technology, quality control and statistical validation;
• Automated Review Workflows - Structured and traceable review methodologies with built-in progress reporting and validation.

The take-away point is that with a sufficient level of forward planning, industry expertise and the use of advanced technology, handling the ever-increasing data volumes and data sources can be controlled. The tools and best practices available today will facilitate repeatable and defensible management of the end-to-end e-disclosure process in an efficient and proportionate manner.

Glen Greenland, managing director and Ian Smith, senior director, both in FTI Consulting's Technology Practice