Simplify the e-discovery process by learning which tools to use and when to use them. CHAPTER 7. Proactive. Review tools. litigation hold tools.

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EXPLORING E-DISCOVERY TOOLS 7 CREATING A LITIGATION PROFILE 7

C H A P T E R

7

Exploring

e-discovery tools

Simplify the e-discovery process by learning

which tools to use and when to use them.

INSIDE:

THE WINDOWS MANAGER’S GUIDE TO E-DISCOVERY

Pro activ e litig atio n hold tools Ar chiv e sy ste ms R e ac tiv e lit ig at io n ho ld to o ls Re vie_w to ols E nt e rpr is e s e ar c h to o ls

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Exploring

e-discovery tools

STAYING ON TOPof legal requests and

litigation holds doesn’t have to be so complicated. There are basic tech-nical tools that can help provide a level of preparedness for litigation— whether a company handles hun-dreds of lawsuits a year or only four or five annually and outsources the entire process to outside counsel or third-party vendors. The trick is knowing what the tools are and how to use them.

Here is a list of the tools that can help simplify the e-discovery process:

qProactive litigation hold tools

qArchive systems

qEnterprise search tools

qReactive litigation hold tools

qE-discovery processing tools

qReview tools

PROACTIVE LITIGATION HOLD TOOLS

Staying ahead of the game is critical when thinking about e-discovery. Because the crux of any litigation hold notice focuses on identifying

Creating a litigation profile

UNDERSTANDING THE TOOLSrequired by Windows managers to handle litigation

holds begins with an analysis of each company’s “litigation profile.” Company profiles will vary, but IT staff should have an idea about the number of cases annually, the most common type of litigation and the way each case is

handled.

When creating a litigation profile, determine how the legal department handles the management of a standard case. Does it handle most litigation internally? Is it moving in this direction, or does it rely on outside counsel to handle all or part of each lawsuit? Many of these answers will help the IT staff best determine how to prepare for the type of litigation hold requests that will be issued. It will also help the staff figure out how IT fits into the litigation hold process and what types of tools will be required.■

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EXPLORING E-DISCOVERY TOOLS 7 CREATING A LITIGATION PROFILE 7 C H A P T E R

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E X P LO R I N G E - D I S CO V E RY TO O L S

3 THE WINDOWS MANAGER’S GUIDE TO E-DISCOVERY

and preserving information, it’s

always beneficial to put in place tools that make it easier to do the core functions of searching and preserving the information. It also benefits a company to apply that same func-tionality to its business and IT processes as well.

ARCHIVE SYSTEMS

Email archives, in particular, can assist in capturing and centralizing electronically stored information within an organization. Depending on how the archive system is implement-ed, the archive can also ensure that documents are not deleted or modi-fied—a huge advantage when work-ing under a litigation hold.

Because the archive is indexed and searchable, it can be scanned for specific information related to a hold notice. The search result can be flagged, copied or exported for the purposes of preservation.

More sophisticated archive tools also provide litigation hold features, allowing the legal department direct access to search within the archive and to place litigation holds on email without the need of IT staff.

When looking at archival systems as a tool for litigation readiness, make sure that the system:

e

Allows the placement of multiple litigation holds on archived data. A single document in the archive may

be subject to several legal holds. It’s important that they can all be tracked separately so that removing one will not remove the others.

r

Archives the original document in a forensically defensible manner. It’s essential that each archived doc-ument is an exact duplicate of the original file with no changes to the document’s metadata or content.

t

Provides a centralized and secure storage area for all of the archived data. For litigation hold purposes, consider tools that allow copying of the information for a litigation hold onto a tamper-proof storage product.

u

Offers the ability to output the search to litigation-oriented soft-ware, such as CaseCentral, Case-Logistix, Concordance, Introspect, JFS Litigator's Notebook, Lextranet, Nmatrix, Ringtail, Summation and Virtual Partner.

Individual archival tools are available for instant messaging and other data sources like SharePoint, but often the ability to archive these sources will be part of a well-rounded email archiving plan. The benefit of these all-in-one types of products is the centralization of all electronically stored data types into one searchable archive, which provides a single point of access for the legal team for litiga-tion hold purposes.

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is connected to Symantec Enterprise Vault, the comprehensive archiving solution that makes managing email fast, efficient, and thorough.

Take control of your most important digital assets. Up to 75% of your company’s intellectual property is in email or instant messaging. Today, a typical eDiscovery request can cost IT departments countless hours and dollars to recover the specific range of messages on time. Symantec Enterprise Vault™ facilitates the legal and business best practices of storing, managing, and discovering email and other electronic files. So you’re free to focus on the big picture.

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ENTERPRISE SEARCH TOOLS Unstructured files are very difficult to search. In typical cases, the searching party will have only the traditional filename or creation date information.

Enterprise search tools have strong indexing capabilities. The indexing itself typically adds specific pieces of metadata to each file, which pre-pares a file to be found at a later date. Comprehensive indexing is usually matched with an equally powerful search capability.

In most cases, searching will sort through files based on previously created metadata. However, search capabilities are increasingly contextu-al, looking inside of files to locate important keywords or concepts. Enterprise search tools offer the following capabilities:

e

They allow the legal department to search and apply litigation holds. This “self-service” approach allows Windows managers to stay focused on IT projects.

r

They offer the ability to copy or export search results to a secure storage area. To preserve information under the litigation hold, the search tool needs to be able to identify and copy or export the search results to a secure area. And, like the archive, the copies must be exact copies for defensibility in court.

t

They can output the search to

litigation-oriented software, such as CaseCentral, CaseLogistix, Con-cordance, Introspect, JFS Litigator's Notebook, Lextranet, Nmatrix, Ring-tail, Summation and Virtual Partner.

REACTIVE LITIGATION HOLD TOOLS

In many instances, organizations with proactive tools such as informa-tion archive soluinforma-tions and enterprise search capabilities will still need other tools to identify, preserve and then deliver documents as part of the e-discovery and litigation hold process. Deciding on which tool is needed will depend on the level of expertise within the IT organization and at what stage the legal depart-ment decides to work with third-party vendors or outside counsel.

FORENSICS TOOLS

Where chain of custody and poten-tial fraudulent conduct is an issue, forensics tools are needed. When evidentiary information is produced, companies must be able to prove the veracity of the evidence itself. Although always important, forensics tools are especially critical when dealing with situations where fraudu-lent conduct is suspected and a user's computer behavior is in question.

Because of the specialized skills needed for forensics collections, more companies are outsourcing this work

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to third-party vendors. But because of the technical nature of the foren-sics process, any IT group that

decides to bring this process in-house should have someone in the depart-ment attend certification training for forensics collection purposes.

For litigation hold purposes, a forensics tool should be able to:

e

Mirror image hard drives and create exact duplicates of the subject hard drive. It is mandatory that the copy be a bit-level exact duplicate.

r

Index and search through native format data.

t

Restore deleted or otherwise dif-ficult-to-access files and fragments.

E-DISCOVERY

PROCESSING TOOLS

The process of extracting metadata and text from electronic documents is known as e-discovery processing. By extracting the metadata and text from electronic documents, such as email or word documents, attorneys can use the resulting data to help organize the electronic documents for review and production. The docu-ments can be sorted according to specific metadata, such as email threads or creator, and grouped together for quick review.

Typically, the e-discovery work

is performed by third-party service providers that are skilled at handling large amounts of data and delivering the resulting data back to the firm or outside counsel in a loadable format that can be used by review or analysis tools. However, depending on the size of the e-discovery project, some com-panies are choosing to bring this process in-house.

At a minimum, an e-discovery processing tool should include:

e

The ability to process multiple types of electronic documents, such as email messages and attachments, PDFs and Microsoft Office files. Most systems today will provide a list of more than 200 file types that can be processed.

r

Reporting tools to track individual jobs back to the original custodian or information source.

t

The ability to maintain document relationships through the process. For example, email and attachments should be kept together.

u

The ability to export data to com-mon review application load files, such as Summation, Concordance, CaseLogistix and ASCII.

i

Exception logging capabilities to identify which documents could not be processed because of password protection or corruption.

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EXPLORING E-DISCOVERY TOOLS 7 CREATING A LITIGATION PROFILE 7 REVIEW TOOLS

Another common area for outsourc-ing is the e-discovery review process, which is a necessary stage in the liti-gation hold and production portions of the e-discovery process. Once information has been identified as part of the litigation hold— but before it is produced to opposing counsel— each piece of information must be reviewed by the legal department or by outside counsel to ensure that the documents are relevant, not privi-leged and can be safely produced.

Consider the following require-ments for any review tool:

e

The ability to view multiple types of electronic documents. Similar to e-discovery processing tools, most review tools will provide a list of more than 200 file types that can be viewed by the application.

r

Able to work with both native and imaged documents. Although a majority of today’s information is stored in electronic format, paper is still a common form of document storage. It is important that the review tool be able to work with both scanned-imaged paper documents as well as electronic versions.

t

A tool for flagging or tagging doc-uments identified as non-responsive or privileged. Also needed is the abil-ity to run a report that provides a list of the privileged documents that can

be used in defense of the final produced set.

u

Tools for redacting portions of a document. When only a portion of a document is privileged or confi-dential, the reviewer needs to be able to take that portion out of the docu-ment before making it available for the other side. In the case of electron-ic documents, the review tool must have the ability to create an image of the native document so a redaction can be applied.

i

The ability to produce the

reviewed documents. The final step in the review process is the creation of a “production set” of all informa-tion that will be produced to opposing counsel. The tool should be able to export and number both the images and electronic documents in an agreed-to format, such as .pdf.

Given the large volumes of elec-tronic data that corporations are now generating during e-discovery requests, it is common for legal

departments to look for outside com-panies to host the review process.

These third-party vendors have the staff and technology available to handle millions of documents at a time, with hundreds of reviewers. But for smaller cases in which the docu-ments number in the hundreds or thousands, it may be more cost-effec-tive to bring this process in-house.■

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9 THE WINDOWS MANAGER’S GUIDE TO E-DISCOVERY

A B O U T T H E A U T H O R S :

Margie Semilof

is the

senior news director

for TechTarget’s

Windows Media

Group and is

respon-sible for news

cover-age of the Windows platform. A

high-tech journalist for more than

20 years, Semilof has written about

a variety of technical topics ranging

from hardware and software to

telecom and networking.

Kathryn Hilton

has

worked as an

indus-try analyst for

Gart-ner Group and for

several large storage

companies. She is

currently a senior analyst for policy

at Contoural Inc., a provider of

business and technology consulting

services that focuses on litigation

readiness, compliance, information

and records management, and

data storage strategy.

The Windows Manager’s Guide to e-Discovery is part of the

Windows Manager’s Guide series

fromSearchWinIT.com. Marilyn Cohodas Editorial Director [email protected] Christine Casatelli Editor [email protected] Martha Moore Copy Editor [email protected] Linda Koury

Art Director of Digital Content [email protected] Jonathan Brown Publisher [email protected] Matthew Salamone Director of Sales [email protected]