In This Issue:

	Feature Article: Cutting Costs and Saving Time Through Early Case Assessment
	Case Law Updates for Corporate Counsel
	News & Events

Feature Article: Cutting Costs and Saving Time Through Early Case Assessment

The increasing proliferation of technology is leading to a growing mountain of electronically stored information (ESI) that can make any electronic discovery project seem daunting. Given the financially trying times for corporations, legal departments have to restrict their budgets and, as a result, are looking for ways to limit their expenditures. Due to the proliferation of ESI and subsequent costs involved in today's discovery disputes, there is a continued demand from IT, legal and other business units to employ effective and proactive data management techniques from the outset of a dispute.

The process of responding to discovery requests has undergone a significant transformation since the implementation of the 2006 amendments to the Federal Rules of Civil Procedure regarding the discovery of electronically stored information. Even just a few years ago, attorneys reviewed countless documents by hand to gain an understanding of the issues at stake. During document review, attorneys would again pour over numerous paper documents to make relevancy and privilege determinations necessary for production. These out-of-date techniques are time consuming and incredibly costly.

Today, litigation professionals have the benefit of early case assessment technology to streamline and simplify legal analysis during internal investigations, litigation or regulatory matters. Early case assessment narrows the scope of potentially relevant data prior to processing, resulting in cost and time savings. Early case assessment is particularly helpful in filtering through thousands of e-mails that may exist in an organization's storage system and ultimately providing structure to this critical body of data. In addition, early case assessment technology can assist litigation teams in understanding the data at issue as well as identifying case themes and strategies early on.

E-Mail Analytics
E-mail analytics allow a reviewer to explore e-mail trends prior to sending the data through to processing and production. This technology helps answer the "who, what and when" questions involved in early case assessment by solving who authored the e-mail and to whom it was sent, what the conversation was about and when the conversation occurred. In addition, dominant themes and timelines may be established and can be displayed through the use of visual analytics.

Advanced Visualization
Advanced visualization technology allows users to identify e-mail trends through charts and graphs, providing a better understanding of relationships among e-mails that may not be obvious through linear review. These graphics allow users to draw a conclusion in a matter of minutes that used to take hours or days, by identifying correspondence, evaluating substance, understanding the parties involved and measuring the volume of interaction shown in each e-mail. In addition, advanced visualization can help litigation teams zero in on documents that have a high probability of being privileged.

In addition to advanced visualization, most early case assessment tools also allow users to:

• Search data using complex, intelligent searching methods such as Boolean and proximity
• Group data by topic, e-mail thread, near-duplicates and language
• Identify potential custodians and other relevant data to be loaded into a review database

Searching
Early case assessment technology relies on advanced searching to increase the number of responsive hits for relevant documents. Two searching methods, concept searching and keyword searching, can be efficient ways to reduce data sets for review.

Concept searching is emerging as a popular alternative to keyword-only searches. This method uses search terms to identify word patterns and relationships, and allows reviewers to find documents with similar conceptual terms even if the exact search terms are not included. Concept searching enables legal teams to learn about their data and ensure accurate filtering criteria are applied. Early case assessment tools that allow for concept searching use advanced statistical modeling to automatically "understand" text by evaluating the context in which a particular term is used. Concept searching allows for a faster and more accurate delivery of document results than conventional searching methods.

Keyword searching is the traditional method and is a common function in early case assessment tools and is used in conjunction with concept searching. This searching method uses search terms to retrieve documents containing the exact terms and is generally accepted by courts. The method also allows users to run different searches to determine which keywords return the most responsive results.

An additional searching method early case assessment tools may provide is the "find similar" feature. Find similar is an advanced searching technology that provides an efficient way to track down similar terms and content within the loaded files.

Practical Applications
Early case assessment technology can help counsel prepare for the Fed. R. Civ. P. 26(f) meet and confer conference by painting a clearer picture of the scope of relevant ESI. The available searching features can be used to test keywords to gain an idea of how certain terms will react, which can aid in making arguments either for or against these terms. Additionally, the visualization features can be used to identify and prioritize custodians for discovery, and can assist in any arguments regarding preservation of documents possessed by certain custodians.

This technology can also aid in internal investigations to identify patterns of conduct. The advanced visualization features can provide quick identification of potential problems, increasing the ability to mitigate damages and mistakes from the beginning of the process. Counsel can also use early case assessment technology to manage sensitive internal matters without relying heavily on their own IT resources that may already be strained. Finally, electronic discovery costs can be assessed more accurately, helping to determine a budget before transitioning to other phases in the e-discovery process.

Early case assessment technology can help cut costs by reducing the data set before processing and review. This technology allows for increasing user activity and the ability to generate visual displays that graphically represent important information as to how messages and custodians relate to one another. Utilizing e-mail analytics and advanced visualization tools will allow for the development of case themes, identification of key custodians and help prepare for important meet and confer conferences. Early case assessment is an important tool every litigation professional should consider to save time and money when responding to litigation or investigations.

Special thanks to Rhea Frederick, Esq., Kroll Ontrack Legal Consultant, and Doug Cohen, Kroll Ontrack/TrialGraphix Senior Director for National Business Development, for their assistance in writing this article. Ms. Frederick and Mr. Cohen help guide corporations through the complexities inherent in the preservation, collection, production and use of electronic evidence. Ms. Frederick offices in Minneapolis and can be reached at rfrederick@krollontrack.com. Mr. Cohen offices in Miami and may be reached at dcohen@trialgraphix.com.

Case Law Updates for Corporate Counsel

Court Imposes Sanctions for Litigation Hold Failure, Orders Funding of E-Discovery Seminar on Proper Preservation
Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009). In this litigation, the plaintiff sought default judgment or adverse inference sanctions claiming the defendants failed to preserve and destroyed relevant documents, and sought punitive monetary sanctions. The defendants' attorneys drafted a litigation hold, which the defendants failed to issue, and subsequently hired an outside vendor to recover deleted e-mails after the defendants' internal information technology (IT) department failed to recover the documents. Finding the defendants' local counsel had little to do with discovery responses, and that the other firm drafted the litigation hold policy and made efforts to confirm client compliance, the court declined to sanction the attorneys. Addressing the defendants' conduct, the court held that while the defendants failed to meet preservation obligations by failing to issue the litigation hold, the conduct was not intentional and therefore did not warrant imposition of a default judgment or an adverse inference. However, the court determined some sanctions were appropriate and awarded future deposition costs, excluding attorneys' fees, to the plaintiff. Additionally, if the plaintiff discovered a specific, relevant e-mail had not been produced, it would be allowed to petition the court for further relief. Finally, the defendants were ordered to pay $2,500 to the Tulsa County Bar Association to fund a seminar on litigation holds and preservation of electronic data.

In-House Impact: Courts are growing increasingly intolerant of parties that fail to exercise reasonable care in the exchange of ESI. Counsel must educate themselves early on, before litigation strikes, about e-discovery issues and best practices. In approaching e-discovery proactively, counsel should take steps to understand where the company's data exists and how it is (or is not) preserved. Otherwise, counsel runs the risk of improperly handling their preservation obligations and may potentially face sanctions by the court, which as demonstrated above, may require nontraditional components such as funding an educational seminar.

Court Determines Attorney-Client Privilege Outweighs Corporate Internet Communications Policy
Stengart v. Loving Care Agency, Inc., 2009 WL 1811064 (N.J. Super. A.D. June 26, 2009). In this ongoing discrimination litigation, the plaintiff appealed the lower court's denial of her motion to require the defendant to return all e-mail copies sent by her to her attorneys on work-issued laptops through her personal, web-based e-mail account. The defendant alleged its electronic communications policy mandated the conversion of e-mails and other Internet use and communication into company business records. The plaintiff maintained that the defendant had never officially adopted the policy or enforced it. The court noted the lack of certainty about the exact meaning and scope of the policy's language created by multiple versions of the policy and stated that any company policy must reasonably relate to a legitimate business interest. Balancing the enforceability of the company's policy with the delicacy of attorney-client privilege, the court determined the policy must give way. Thus, the court reversed the lower court's decision and concluded the e-mails sent over the plaintiff's personal Yahoo! account remained privilege protected. The court also remanded the case to determine whether the defendant's counsel should be disqualified from further representation.

In-House Impact: Corporations should act proactively by having a communications policy in place that governs employee use of the Internet, including e-mail, blogs, message boards, social networking sites and instant messaging. Although possessing a policy does not guarantee success in the courtroom, it is a step in the right direction toward ensuring tighter corporate data security. Monitoring employee computer conduct can also help determine if information is being lost and, if so, where the leak is occurring, which will assist in the investigation of insider crimes.

News & Events

Download Kroll Ontrack's Recent Podcast, "Safeguarding Sensitive Information, Data Breaches & Preservation Issues"
In this edition of the ESI Report, host Gina Jytyla, Managing Staff Attorney in the Legal Technologies division at Kroll Ontrack, welcomes Alan Brill, Senior Managing Director for Kroll Ontrack's Information Security Services, and Steve Baird, Managing Director for Kroll Ontrack's Information Security, Computer Forensics and ESI Consulting Group, to discuss pressing information security concerns. Specifically, the discussion addresses how to protect your sensitive data from the growing risk of data breaches and explores best practices in responding to a breach incident. In the Bits & Bytes Legal Analysis segment, Kroll Ontrack Legal Correspondent Kelly Kubacki will take a look at the order issued in Pinstripe, Inc. v. Manpower, Inc. and the important issue of litigation holds and preservation in discovery. To listen to the podcast, visit www.krollontrack.com/redir/1009DataBreachPodcast-IHA.asp.

Enhanced E-Discovery Certification Course Propels Litigation Teams to New Heights
Become an e-discovery expert to prevent your corporation from becoming the next headline. Kroll Ontrack's 2009 E-Discovery Certification Course is ideal for legal and technical professionals of all levels, especially in-house counsel, litigation support professionals and IT staff. Upon completion of this program, you will be able to make informed decisions regarding ESI, be prepared to negotiate at the meet and confer and understand the most current e-discovery law.

We are currently extending an offer to all corporate counsel attendees. Sign up with a corporate counsel colleague and pay only one registration fee. For more information or to register for the December 3-4 course, visit www.krollontrack.com/certification-courses/.

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Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.

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This newsletter was written by Kelly Kubacki, Kroll Ontrack Law Clerk, with assistance from Regina Jytyla, Kroll Ontrack Managing Staff Attorney. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.