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How to choose an e-discovery tool

Here is a list of factors to consider when choosing an e-discovery tool.

What you will learn: This tip outlines the most important things to consider when choosing an e-discovery tool.

Storage administrators have a number of options for managing the increasingly unmanageable business of meeting discovery requests for emails and other electronic records. E-discovery tools sort through a vast amount of data to find specific documents relevant to a legal request. The field is new enough that the tools tend to be differ in terms of their feature sets, so it's important to do your homework.

While no one is likely to go to jail for inadequate response to an e-discovery request, your company (and perhaps you personally) can be in hot water if you don't turn up all the relevant material. Fines of more than a million dollars have been levied for failure to produce relevant documents. What's more, courts generally rank the excuse that "we couldn't find it" in discovery cases right up there with "the dog ate my homework."

Available e-discovery products available include the Patterns software suite from Attenex and Trial Solutions' electronic discovery native review tool software. Consider the following factors when deciding what tool is right for you:

  • What do your attorneys want?

    The role of storage administration in e-discovery is fundamentally a support function for your organization's legal department. Requirements for the kinds of documents to be searched may include how they are to be handled, the file format they are to be presented in and preservation of the chain of evidence.

    Discovery is a critical strategic function in a legal case; the rules for producing documents are often hammered out between the parties early in the proceedings. An e-discovery tool should be able to meet those agreed-upon requirements.

  • Does the tool allow easy annotation of documents?

    Most of the material turned up in a typical e-discovery search is unrelated to the case, and much of it will be redundant, i.e., multiple copies of the same memo. Some of it will be privileged and unable to be released. The legal staff needs a fast way of annotating the documents to classify them, so they can be acted on.

    Correctly annotating privileged documents is especially important; accidentally releasing something that shouldn't have been released has sunk more than one case.

  • Does the tool maintain an appropriate chain of evidence?

    For those of you who don't watch Law and Order, chain of evidence refers to being able to prove that the documents are unchanged from their time of creation. It can be critical to your case.

    The steps necessary to maintain the chain of evidence may vary depending on the case and the nature of the documents. Your attorneys will tell you what you need.

    Chain of evidence is one of the strongest arguments against writing your own e-discovery tools. Even if you could find the required emails with a shell script, you'd have a tough time proving you had satisfied the chain of evidence requirements.

  • Does the tool maintain native file format?

    Converting documents to a different format such as .pdf before they are reviewed adds expense -- usually 5 to 20 cents per document. Since a case search may turn up hundreds of thousands of documents -- most of which aren't relevant -- that expense can be a considerable, as well as unnecessary. Furthermore, converting documents may complicate life for your attorneys as well. It is usually better to keep documents in their native formats until after they have been examined by the attorneys.

  • Should you outsource?

    Several companies, such as Global Digital Forensics and Applied Discovery Inc., specialize in handling e-discovery. Their people handle the pick-and-shovel labor of ferreting out the documents that you need in order to meet discovery requirements. Such outsourcing services are expensive, but are nevetheless cheaper than trying to do the same job with your own people.

    However, having the right tools can make the job much less expensive, often less than the cost of farming it out. You'll also avoid the security issues that result from having outsiders tromping around in your organization's files.

    The outsourcing option needs to be considered carefully. As part of selecting an e-discovery service, you should review the vendors' procedures and security measures to protect your data.

    Finally, you're probably going to want to ask the vendor most of the same questions you'd ask if you were selecting a software e-discovery tool.

  • About the author: Rick Cook specializes in writing about issues related to storage and storage management.

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