Most of you are familiar with the problems and opportunities associated with electronic discovery. In the face of these challenges, new e-discovery products have been hitting the marketplace and old, established providers are scrambling to respond. Innovation is leading the way, and two new technologies have emerged.
Concept folders and e-mail mapping are two new techniques that can = help attorneys manage electronic documents during litigation by organizing a document set and finding critical connections buried in large e-mail collections.
With 90% of business messaging conducted by e-mail, instant messaging and voice mail, most cases today have an e-discovery component and the "smoking gun" is frequently found in e-mail. Yesterday's discovery procedures and rules were designed for a paper world and don't function well when data is stored electronically. While it was expensive and inconvenient to look at every page during a paper-based discovery process, it can be absolutely cost-prohibitive to follow similar procedures for the mammoth volumes of data stored on today's electronic data storage and archiving devices. How best then to review, organize, analyze and produce electronic documents? To update an old example, litigators must search many more haystacks to find the needles buried inside them.
When faced with several haystacks worth of electronic information in large, complex cases, litigants confront several unpalatable options.
To manually review every page is cost-prohibitive, and affordable reviewers are too inexperienced. Litigants can also try to limit the type of electronic documents they review, for instance, to particular custodians. Early in a case, however, how can a litigator know which inboxes to ignore?
Going For Gold
Needless to say, attorneys are justifiably uneasy with the prospect of limiting the scope of discovery early in a case, before many of the key players emerge.
None of these problems would merit much discussion, of course, if electronic documents were not so extraordinarily valuable to litigants. Attorneys are understandably eager to seek discovery of as much electronic data as possible, because the worth of electronic documents has been proven time and time again.
People are remarkably honest and unguarded when they send e-mail messages. e-Mail enables information to be disseminated quickly and widely 97 one person can instantaneously send information to hundreds of others. Message flows can reveal connections between seemingly unrelated people that would not otherwise be apparent. To continue the example introduced above, many more needles are contained within the electronic haystacks, and many of them are so valuable they may as well be made of gold.
In fact, during a recent National Public Radio Marketplace interview, David Brown, the investment protection director in New York Attorney General Eliot Spitzer's office, said: "Lawyers used to say the great engine of truth is cross examination ... but today it's e-mail. That's where people now put their most unguarded, and often most damaging, thoughts down."
However, e-mail in particular is difficult to review in paper form. Messages frequently are sent with attachments, and assessing their relevance requires that they be viewed together. In addition, complicated e-mail threads are valuable sources of information but can be confusing to review.
Concept folders and e-mail mapping can help litigants surmount the challenges posed by electronic documents and complex e-mail communication for large-scale litigation.
Organizing With Concept Folders
Attorneys want to have a large body of electronic information at their fingertips while they're litigating, but they need to be able to examine it and know what it contains. What should they do when faced with a mountain of potentially valuable information?
Attorneys need a system that can automatically organize the large document sets turned over during litigation so they can spend their time finding the right needle instead of searching endlessly through the wrong haystacks. They need a system that will analyze the contents of the documents produced in discovery and organize the entire document universe.
Innovative technology can provide a solution to this problem. For example, the Stratify Legal Discovery service automatically creates concept folders based on the contents of the documents, and then organizes the concepts hierarchically into a single folder tree based on their interrelationships. Documents about similar topics are grouped together in folders to organize the entire document universe. The system analyzes all electronic documents together with paper documents that have been scanned and read by optical character recognition (OCR).
An organized document set provides attorneys with several advantages. In every case, relevant documents are buried among a larger number of unimportant documents. If documents are grouped into concept folders according to their content, attorneys can immediately focus on the most important concept folders in the case and examine the documents and e-mail messages they contain. Instead of searching through the disorganized document set to find relevant documents piecemeal, reviewers can identify and view the most important documents at the start of a case. As the litigation evolves and other concepts become more relevant, litigators can immediately examine in detail the newly relevant documents.
How Do Concept Folders Work?
Every document is modeled based on the words it contains. From the words in the documents, different types of clustering technology can be used to organize the documents. Each document is analyzed separately and then in conjunction with every other document to determine how similar it is to the other documents in a particular concept cluster.
Documents with a high degree of similarity are grouped together. Since the concept clusters are determined strictly on the words appearing in the documents, an individual document may appear in more than one cluster if it is judged to be similar enough to different groups of documents. Some of the clusters will be very similar to each other and be amalgamated, whereas other clusters will be subdivided into more granular groups of documents. This process results in a case-specific folder structure based on its unique document set.
This entire process takes place before a single person must review the documents. The savings, of time and money, can be considerable.
e-Mail Mapping
Technology can also revolutionize how e-mail messages are reviewed and analyzed. Attorneys have long tracked connections between different people involved in a case by using simple line diagrams mapping out the people's names with the links between them. e-Mail is well suited to such treatment, because it is documentary proof of a relationship between specific people.
e-Mail mapping technology allows attorneys to find and examine e-mail messages between any two people involved in a case, together with messages sent through intermediary correspondents. By presenting a visual display of message flows between senders, receivers and intermediaries, it enables attorneys to highlight important relationships, analyze them based on various parameters (such as threads, concept folders, tags and date range), and pinpoint critical messages and their attachments.
Stratify Visual E-mail Analytics offers one such e-mail mapping system. It processes e-mail and attached documents in their native format and manages them in a discovery database. This provides the system with in-depth insight into all relationships between correspondents. For any selected sender and receiver, the software can generate an e-mail map representing all relevant message flows. By displaying these graphically, the system takes advantage of e-mail's unique nature. For any known relationship between two people, a user can immediately locate, sort and search all of the e-mails between them.
While direct correspondence between a sender and receiver is valuable,indirect message flows involving intermediary correspondents are often just as useful, and far more difficult, to track without some sort of e-mail mapping. For instance, an important e-mail will often pass through the inbox or inboxes of one or more intermediaries, who may make their own suggestions or additions to the e-mail thread. Alternatively, correspondents may create different threadsto multiple individuals related to one another but that are otherwise difficult to connect. e-Mail mapping can locate these indirect and invisible relationships between people, and uncover potentially incriminating messages.
Attorneys need the ability to quickly analyze complex message flows, so the ability to control which intermediaries appear in the map, as well as messages based on threads, concept folders, tags and date range, is important to help them identify critical messages. At any time during analysis, messages for any individual correspondent or between any two (or more) people can be accessed and viewed. Finally, if an attorney wants to analyze a different set of messages, he or she can easily retrieve them for analysis from the database by searching for specific text or metadata, or both.
e-Mail mapping is especially valuable during deposition and trial preparation, too, when attorneys need to review all communications between the deponent and other key individuals. Instead of laboriously rechecking the entire document database or assuming that the e-mails already gathered are all that are known, an attorney can find every connection, direct or through an intermediary, between the deponent and any other person.
Innovative technology is changing the discovery process, helping to solve many problems and presenting new opportunities for litigants. Concept folders and e-mail mapping are two new tools in particular that will help attorneys conduct discovery effectively and cost-efficiently.