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	Feature Article: E-Mail Analytics: The Next Generation in E-Discovery
	Litigation Minute
	News & Events

Feature Article: E-Mail Analytics: The Next Generation in E-Discovery

The task of handling e-discovery in a thorough yet cost-effective manner may seem almost impossible due to the mountainous volume of discoverable electronically stored information (ESI) that frequently exists in a case. Fortunately, attorneys can save time and money by reducing the volume of ESI through early case assessment, a vital first step in the investigation or litigation process that allows counsel to narrow the scope of potentially relevant data prior to processing. Early case assessment is particularly helpful in addressing e-mail discoverability. Establishing what e-mails exist and their content can aid counsel in deciding whether to proceed with a lawsuit or to settle based on the existence of a damaging "smoking gun" e-mail.

The process used to conduct early case assessment in civil litigation has recently undergone significant transformation. Only a few years ago, attorneys conducted this process by reviewing countless e-mails by hand to make relevancy and privilege determinations. Today, counsel has the benefit of technological advancements in the form of e-mail analysis tools to aid in the early case assessment process. E-mail analysis tools can quickly display messages and visually represent relationships between people, events, timelines and communication patterns.

E-Mail Analysis Tools
Like other forms of ESI, e-mail is easily manipulated and can be altered irrevocably if handled incorrectly. Even the simple act of opening an e-mail can alter metadata properties. Therefore, e-mail analysis should not be conducted without the use of dependable software designed specifically for early case assessment that allows a user to review e-mails in their native format without the risk of spoliation.

E-mail analysis software usually takes the form of a local desktop application that gives a legal team the power to analyze e-mail communication, allowing users to explore e-mail trends before employing an electronic evidence service provider or computer forensics expert. E-mail analysis tools can also reveal dominant themes, establish timelines and graphically display communication lines between internal and external e-mail users. Counsel also has the ability to test keywords to gain a general idea of how searches based on the chosen keywords will react, and to prioritize custodians based on the e-mail trends revealed.

Data Horror Stories
The consulting team identified that the company's reports on the locations of data were horribly inaccurate. As a result, the company was paying to maintain far more data and software than management realized. Also, the vendor that the company hired to backup server data was not destroying the backup data as required by the company's retention policy. As a result, the company had vast amounts of data that could become evidence in litigation.

The company also had only one copy of some important human resource files. These files were on one PC, not backed up, and the IT department had no idea they existed. In addition, only one person had the password to some highly sensitive financial files. The files were so well encrypted that if that employee left the company, the company would probably never be able to access those files again.

Finally, an unused PC was found under someone's desk. The computer had ten years of highly sensitive company financial information that should have been destroyed and ten years of recent financial information that should have been secured in a safe place.

Benefits of E-Mail Analysis Tools
E-mail analysis tools help answer the "who, what and when" questions involved in early case assessment:

• Who authored the e-mail and to whom was it sent
• What were they talking about
• When did they talk

E-mail analysis software also helps ease the burden and costs associated with e-discovery and helps counsel be better prepared for early meet & confer conferences, prior to substantial collection of ESI. Specifically, counsel will gain the knowledge necessary to craft a case strategy, define keyword searches and make pertinent arguments either for or against discovery requests at pre-trial conferences.

Ontrack^® Firstview^™ Delivers E-Mail Analysis
Continuing its history of leading-edge technological innovation, Kroll Ontrack has incorporated e-mail analysis and advanced visualization capabilities into an exciting tool, Ontrack Firstview. With Ontrack Firstview's do-it-yourself technology, you can:

• Reveal dominant themes present within e-mail communication using advanced visualization technology and concept searching.
• Establish a timeline for events giving rise to investigation or suit.
• Graphically display communication lines between internal and external people.
• Search for key people, words and phrases or dates and times.
• Create graphs, charts and reports to help demonstrate conclusions and present to corporate executives, opposing parties or judges.

Using e-mail analysis software can maximize efficiency in the early case assessment process, leading to reduced long-term costs and an informed case strategy. Conducting the important first step of e-mail analysis prior to engaging in pre-trial conferences allows your legal team to take control over the scope of discovery. The legal team will be more prepared to tackle discovery issues that arise in early meet and confer conferences, leading to further time and cost saving.

Litigation Minute

Understanding Your Jury: Leveraging the Knowledge of a Jury Consultant
Fear is considered one of the primary motivators of a person's conduct. As attorneys tasked to pick juries, there may be a fear of failure or even a fear of accidentally allowing the "loose cannon" juror to slip through the process. One way to ease these fears and increase the likelihood of success is to partner with a jury consultant when conducting voir dire.

Two primary goals of the voir dire process exist. The first is to "deselect" jurors who will be biased against your case. The second is to create rapport and trust with potential jurors. While the former requires careful, advance planning of voir dire questions, the latter requires interpersonal communication skills that make jurors feel at ease sharing personal information. Hiring a social scientist specially trained in jury selection—better known as a jury consultant—can significantly increase your likelihood of success at trial.

An experienced jury consultant will rely on the following strategies when selecting a winning jury:

• Choose the jury, not the juror. Being attuned to the personalities of prospective jurors is critical, as is anticipating how they might work together. Who will be the leaders? The benchwarmers? The likely foreperson?
• Build rapport, not a fence. Take every opportunity to make a good first impression as it is important to start the jury-attorney relationship off on the right foot.
• Strategize now or pay later. It is imperative to have a voir dire strategy before walking into the courtroom and to plan for how best to respond to jury selection issues.

There are powerful advantages to retaining a jury consultant to assist you with the voir dire process. The skills for successfully picking a jury are not taught in law school. These skills – understanding nonverbal communication, interviewing techniques, group dynamics and social interaction � are taught in psychology, sociology and communication departments. As a successful trial lawyer, you are preoccupied with focusing on the facts of your case and preparing legal arguments. In contrast, a jury consultant is solely focused on securing the most favorable jury to ensure that the arguments you make on behalf of your client do not fall on deaf ears.

To better understand your audience, download a free white paper titled, Understanding Your Jury: Leveraging the Knowledge of a Jury Consultant in Conducting Effective Jury Voir Dire, available at: www.krollontrack.com/juryconsulting/.

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This newsletter is written by Gina Jytyla and Joni Shogren, Kroll Ontrack staff attorneys, with assistance from Meridith Socha and Kelly Kubacki, law clerks. Ms. Jytyla can be contacted at gjytyla@krollontrack.com.

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