Federal courts and regulatory agencies are going digital, favoring electronic documents over hard-copy printouts. The federal courts, as well as agencies such as the Federal Trade Commission (FTC) and Department of Justice (DOJ), are replacing their self-proclaimed “outdated” protocols with new systems based on current technologies. These new procedures are designed to better suit today’s nearly all-electronic business environment.

 

Legal technology professionals are often called upon to advise attorneys on the best method for storing, reviewing and producing documents involved in legal proceedings. Whether it’s an electronic discovery request in litigation or an electronic document request in a merger review or other government investigation, now is the right time to implement best practices for reviewing electronic documents.

 

The Need for a Uniform Format

The sheer volume of information created and stored electronically presents a challenge. E-mail is the primary contributor to the glut. The number of e-mail messages sent and received by employees at U.S. companies is growing by 29 percent each year, with a typical 3,000-user e-mail system handling more than one terabyte of message traffic annually. Other critical business documents are also stored on computers. In fact, experts agree that 70-80 percent of corporate information is now housed solely in electronic form. As a result of the increased volume of information, the volume of data that must pass through the discovery process has also substantially increased.

 

It would seem that review of electronic files in their native format would be the most logical and “true” form of review for electronic documents. Unfortunately, native file review has significant downsides and even compromises the authenticity of evidence produced to the court or an investigating government agency.

 

Logistics and Review Limitations

From a logistical standpoint, native file review gets very complicated. Businesses create a staggering volume of electronic information. Yet, the volume isn’t the biggest problem—it’s the variety. Companies use dozens of software applications in the course of everyday business, including spreadsheet software, word processors, e-mail and graphics programs. To complicate matters, several different versions of the same program are often used within a corporation. If you choose to review documents with native applications, you may need to purchase, install and maintain dozens of different applications. Electronic data gathered for legal review also typically contain legacy data from systems and programs no longer in use. In some cases, this legacy system data cannot be read on current operating systems.

 

Significant efforts are required by your IT staff to load all the necessary software programs onto every PC to be utilized for native format document review. The seemingly simple act of locating all the necessary software programs to open and view files can consume months of time and hundreds of thousands of dollars. Even then, members of the review team can view the documents only from PCs with all the necessary software installed. The logistical limitations of native file review are compounded by an inability to search, categorize, redact and produce information efficiently from native files.

 

Review of native files is also restricted by the functionality of the native software programs. For example, attorneys frequently gather a large volume of

e-mail from clients when responding to a discovery request. Microsoft Outlook, one of the most common e-mail programs encountered in this process, would appear to be relatively user-friendly from a document review standpoint. The “Find” functionality allows a user to pinpoint key words in the subject line or body of an e-mail message, and messages can be organized in folders within the application. It allows a review of messages sorted by date sent or received, or by message author or recipient. What many people fail to realize, however, is that it is impossible to search any attachments to the messages when relying on the functionality of the native program. Native e-mail review would require the legal team to open and check each attachment for relevant or privileged information. It also prevents easy identification of any “bcc” designations associated with the messages.

 

Other problems occur with spreadsheet or word processing programs, for example, which lack point and click “tagging” functionality like that of many e-mail programs. In these programs, documents cannot easily be sorted and organized for responsiveness. In any native software program, your review team will be unable to redact privileged information effectively.

 

Altering the Data

Even more important than the inconvenience of native file review is the potential for changes to the native files. For example, a document created in a word processor program typically stores a “date last modified” field in the document’s metadata. The simple act of opening the file for review, even when no changes are made, will likely change the document’s modification history.

 

Other changes can occur when native files are loaded onto the review machines, before the legal team even begins its work. Without proper precautions, material details can be changed. Time zones, for example, can be a critical issue when reviewing e-mail communications. When e-mail files are copied from multiple time zones and loaded for review, the time designations displayed on the face of e-mail messages may be altered. When information concerning the date or time of certain occurrences or communications matters to the case, this distortion of the data can be risky and may raise issues of the overall integrity of your team’s document review practices.

 

A Preferred Format—Courts and Government Agencies Speak Out

To understand the disadvantages of native file review, you need a viable solution for electronic review. Adobe’s® Portable Document Format (PDF) is quickly becoming the legal industry standard. Indications of this standardization are evident in federal courts and government agencies.

 

Federal Courts—Litigation

Concurrent with the growth in the volume of information created and stored electronically, the federal courts have undertaken an initiative known as the Case Management / Electronic Case Files Project (CM/ECF). CM/ECF encourages litigants to file court documents electronically, and the only file format accepted is PDF. The CM/ECF project was initiated in 2001, and currently has 101 courts either fully implemented or in the implementation process. The goal of the project is to provide Internet access to litigation documentation for litigants and members of the public. The CM/ECF project is a clear indication of the continuing trend of increasing use of technology in litigation and foreshadows the courts’ likely mandate of electronic filings in the future. As the CM/ECF project is rolled out nationwide, attorneys who manage discovery documents in PDF have a distinct advantage over those who do not. There is no delay or expense in converting documents from paper or some other electronic format to PDF. In large cases involving hundreds of thousands of pages of documentation, this advantage will be significant.

 

Government Agencies—Mergers and Acquisitions

When companies are involved in a merger or acquisition valued at more than $50 million, they must submit certain paperwork and documentation  to the FTC or DOJ, the agencies with antitrust enforcement authority. After initial materials are reviewed, the FTC or DOJ may determine that additional information is necessary to ensure that the proposed deal will not have anticompetitive effects in the marketplace— it’s known as a “second request.”  When a second request is issued, the companies involved in the deal must submit information on particular issues identified by the requesting agency. This information includes e-mail messages and other computer-generated documents, and frequently involves review of substantial volumes of data stored on backup tapes.

 

In 2002, the FTC initiated public discussions to establish “best practices” for antitrust investigations. One of the foremost goals was to establish best practices for reviewing electronic documents in response to a second request. On December 11, 2002, the FTC’s Bureau of Competition issued a press release summarizing its findings from the best practices workshops. Significantly, the FTC indicated that the preferred method of production of documentation in response to a second request is a web-based repository of electronic documents stored in PDF. The FTC discredited the effectiveness of productions in paper format or productions of native electronic files. While the DOJ has been slower than the FTC in making official recommendations regarding electronic production, the agencies have indicated they intend to work together to standardize practices where possible.

 

Conclusion

Information stored on legacy systems, backup tapes or other media that may have presented a challenge in its native format can easily be displayed in a uniform PDF format and stored in a web-based repository. With access from any Internet-connected PC, your review team benefits from the functionality of software designed exclusively for the purpose of legal document review, and your IT staff benefits from implementation of accepted best practices.

 

About our author . . .

 

Sean M. Bell is Senior Product Manager at Applied Discovery, Inc., a leading provider of electronic discovery services to the country’s Top 100 law firms and Fortune 500 corporations.(www.applieddiscovery.com) sean.bell@applieddiscovery.com.