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It is no surprise that most organizations today face increasing volumes of electronically stored information (ESI) that must be identified, reviewed and produced in legal proceedings. Redundant data, a natural by-product of creating documents and communicating electronically, is a principal reason for the increasing volume of ESI and a common source of frustration in the document review process. For example, suppose a contract was drafted and e-mailed to five employees at Company X. There are now five duplicate e-mails and five duplicate contracts on Company X's computer systems. Assuming each recipient edits the contract and re-circulates it to all five employees, Company X now has 25 near-duplicate contracts and e-mail threads possessing minute differences. This process could repeat itself several times, thus exponentially increasing the number of e-mails and documents. If Company X becomes involved in litigation, all of those documents and e-mails must be quickly and cost-effectively reviewed and evaluated for possible production in discovery. In addition, the review team must often ensure that all of the duplicates, near-duplicates and e-mail threads are treated consistently, e.g., redacted in the same way and/or flagged as privileged. While de-duplication and duplicate synching technologies have, for several years now, facilitated the automatic identification, comparison and consistent treatment of exact duplicates, e.g., the original five e-mails and attachments in our example, there has been no easy way to do the same with near-duplicates and e-mail threads until now. Cutting-edge e-mail threading and near-duplicate identification technologies present a powerful new way to promote speed, efficiency, accuracy and consistency in the document review process by allowing reviewers to easily identify, group and compare similar documents and e-mails. Near-Duplication This technology works by assessing the document set's similarities, identifying the most uniquely representative documents as the "core" documents. All related documents are then grouped together around these cores. Once the core document is identified, the reviewer can determine quickly whether the other documents surrounding the core can be discarded as irrelevant or whether any differences among the documents warrant a further, more in-depth review. This technology also provides the review team with the ability to make privilege and relevancy determinations for the entire group of documents that are formed around the core. Some key specific features of advanced review platforms that offer near-duplicate technology include:
To follow through on our example above, this technology would allow Company X's attorneys to quickly and easily identify, group and compare all drafts of the contract, thereby ensuring that they are all redacted, annotated and categorized consistently. E-Mail Threading Threads can be displayed in list view or in a graphical diagram that depicts the lines of communication in a given thread. An e-mail thread typically consists of an initial e-mail and any subsequent replies, forwards, etc. This technology will also identify the earliest and latest e-mail in the chain, which allows users to review an entire conversation from either the "top" or "bottom" of the thread. Like the near-duplicate technology, the use of threading technology can significantly enhance the speed, accuracy and consistency of review decisions, especially in light of the volume and importance of e-mail in most electronic discovery projects. Litigation teams can greatly increase the effectiveness and quality of their document review by empowering the review team with near-duplication and e-mail threading technologies. Eliminating redundant data and organizing the document set before review will save time by decreasing the volume of documents, enhancing consistency by grouping together similar documents and e-mails, improving accuracy by providing a relational context between the documents and informing case strategy by identifying documents conceptually related. Special thanks to Gina M. Day, Esq., Kroll Ontrack legal consultant, for her assistance in writing this article. In her role, Ms. Day helps guide other attorneys and legal professionals through the complexities inherent in the collection, production and use of electronic evidence. She also provides information and advice on legal technology issues concerning electronic discovery, computer forensics and the incorporation of traditional paper discovery into a unified electronic review platform. She can be reached at gday@krollontrack.com for questions or comments.
Ethical obligations exist in all aspects of litigation – including the use of trial presentation technology. Although specific ethical obligations are not yet formally recognized by the ABA Model Rules of Professional Conduct, the Rules do state that every lawyer possesses an ethical duty of candor and must represent facts accurately (ABA Model Rules of Professional Conduct 3.3). Certainly this duty extends to the use of demonstratives at trial; however, as a practical matter, lawyers are often left to rely on their own judgment. Based on lawyers' ethical obligations, a balance must be achieved between prejudice and persuasion. In regard to trial presentation techniques, it is important to ensure the truth is not compromised by an overuse of creativity in the presentation design process. Specifically, this balance includes considerations regarding the use of scaling, icons and color on demonstratives.
Avoid the ethical gray area that may be present in leveraging presentation technology by using scaling, icons and color techniques appropriately in demonstratives. In addition, be sure to use the most direct path to tell the story to ensure ethical obligations are met while providing jurors with a complete story from which to draw their conclusions. It is also important to avoid over-decorating demonstratives. The primary goal of utilizing demonstratives at trial is to communicate key messages – not make the exhibits look good. Finally, do not over try the case by attempting to impress jurors with legal or technical acumen. A simple message and accurate demonstratives will go a long way toward meeting ethical obligations and achieving victory at trial. Enhanced E-Discovery Certification Course Propels Litigation Teams to New Heights Download Kroll Ontrack's Recent Podcast, "State Rulemaking Activity, E-Discovery Tips and Production in Texas" Meet our representatives at the following events:
Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.
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.
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