Discovery practices have evolved with technology. In
the past, responses to requests for the production of
documents entailed solely a search for paper documents.
The actual production of documents to an opposing party
consisted of making photocopies of responsive documents
and bates stamping them with a device that usually left
ink on your fingers and clean white shirt.
However, the evolution of corporate computing, from
mainframe computing to computers on every employee’s
desk, local area networks, and Internet-based services,
has changed our perception of what constitutes “responsive
documents.” In fact, the definition of documents
in Rule 34 of the Federal Rules of Civil Procedure includes
“data compilations,” and courts routinely
require parties in litigation to produce documents stored
in electronic format. Electronic documents include,
among other things, Word documents, spreadsheets, databases,
PowerPoint presentations and e-mail. These documents
can reside on hard drives, floppy disks, CDs, network
servers, archive servers and back-up tapes.
Production of electronic documents and data in litigation
often requires the assistance of an outside vendor (an
“E-Discovery” vendor) to retrieve the documents
and/or data and to put them into a reviewable format.
As a result of the changed environment, the legal community
has seen a rapid proliferation of E-Discovery services.
There are plenty of E-Discovery vendors ready and willing
(but not necessarily able) to assist you in meeting
your client’s E- Discovery needs. Because selection
of an unqualified or uncooperative E-Discovery vendor
can be costly and detrimental to your case, the focus
of this article is some succinct advice on how to go
about selecting an E-Discovery vendor.
What is an E-Discovery Vendor?
An E-Discovery vendor is someone with the ability
to assist lawyers and clients in obtaining electronic
data in litigation. An E-Discovery vendor has the ability
to work with a client’s IT staff to ascertain
where documents are stored, in what format they are
stored and how the data can be retrieved in a way that
does not change it. In addition, an E-Discovery vendor
generally has access to equipment and personnel that
allow legacy data from dormant e-mail, word processing
and other systems to be read and retrieved. Qualified
E-Discovery vendors also know how to convert the obtained
data into a format that allows attorneys to review and
What is the E-Discovery Vendor’s Lingo?
I have put together a glossary of terms that may arise
in your dealings with E-Discovery vendors. While this
article will not discuss all of the terms set forth
below, having this glossary in your files will help
you talk to E-Discovery vendors about their services
and to make decisions about how to manage electronic
documents during the course of litigation.
- Active Data: Data
on a computer that can be accessed without restoration
- Application: A software
program such as Word or Excel
- Attachments: Electronic
files appended to an e-mail message
- Backup: A copy of
data for preservation purposes; data is often backed-up
on a network file server or backup tapes
- Burn: Computer slang
for “copy” (i.e. to burn files to a CD)
- CD-ROM: A common data
storage medium, often used to carry, trade and produce
- Custodian: Person
having control of an electronic file; often referred
to as the “employee source” during the
- Data: Electronic information
stored on a computer
- De-Duplication: The
process of removing duplicate files from a document
- Deleted File: A file
with disk space that has been designated as available
for reuse; the deleted file remains intact until it
- E-mail: Electronic
mail or computer-based mail
- E-mail String: A series
of e-mails linked together by e-mail responses or
- Electronic Discovery: The
process of collecting (also called “harvesting”),
preparing, reviewing, and producing electronic documents
in the context of the legal process
- Electronic Image: An
electronic or digital picture of a document; the most
common image used in E-Discovery is TIFF (Tagged Information
- File: Data stored
under a specific name
- File Format: The organization
or characteristics of a file that allow it to be used
with certain software programs
- File Server: A computer
designated to serve as the main storage location for
other computers on a network
- Floppy Disc: A common
storage medium used to copy and port relatively small
amounts of data
- Hard Drive: A computer’s
primary data storage device
- Harvesting: The process
of retrieving or collecting electronic data from storage
media or devices; an E-Discovery vendor “harvests”
electronic data from computer hard drives, file servers,
CDs, and backup tapes for processing and load to storage
media or a database management system
- Keyword Search: A
search – of the text of documents in a database
– designed to retrieve documents containing
a “keyword;” generally the most basic
of a number of searches; depending on the software
application’s capabilities, a variety of advanced
searches can be performed
- Meta data: Data about
data; resides in the shadows of a document and usually
includes information such as, author, recipient, creation
date, modified date, etc.
- Native File: A file
in its original file format that has not been converted
to a digital image or other file format
- Network: A group of
computers linked together (“networked”)
for the exchange and sharing of data
- OCR Text: Optical
Character Recognition; searchable text that corresponds
to a document image; an OCR software program designed
to “read” a document image generates OCR
- PC: Personal computer
The E-Discovery Process
The process of obtaining and reviewing electronic
documents/data consists of several parts – assessment
and budgeting, harvesting, filtering, and formatting.
- Assessment and Budgeting. The
costs to harvest and process electronic data depends
upon two factors: time and amount of data. E-Discovery
vendors typically charge by the hour to harvest data.
Thus, knowing the number of servers, work stations,
back-up tapes, and legacy systems involved is essential
to budgeting the harvesting costs. The first step
in the process is usually a conference call with someone
from the client’s IT staff, your firm’s
discovery guru, and the E-Discovery vendor you have
in mind. Preliminary calls are necessary for the E-Discovery
vendor to have adequate information to price the project.
- Harvesting. Harvesting is the
physical process where information is copied from
the client’s various computers and data storage
systems. This is often done by the E-Discovery vendor.
Sometimes, clients with robust IT staffs will do the
harvesting as directed by the E-Discovery vendor.
The harvesting needs to be done in such a way that
it copies the data as is and does not change any of
its profile characteristics such as metadata.
- Filtering. Data harvesting is
broad in scope. Hard drives, disks and backup tapes
are simply mirrored. After the information is acquired,
the E-discovery vendor, working with counsel, will
develop a set of terms to pull out documents and data
that may be relevant to the litigation. In other words
searches are used to “cull” down the gross
collection to a more manageable and relevant size.
- Formatting. After filtering, documents
are either put into some type of electronic format
so they can be reviewed in a litigation support database
or “blown back” to paper to be reviewed
Tips for Vetting the Vendor
- Get ahead of the knowledge curve.
Learning about E-Discovery on the fly is difficult
at best. Make someone in your firm the E-Discovery
guru and give that person the time and resources to
get educated so that he or she can educate the rest
of the firm. Becoming knowledgeable entails tracking
the case law, attending seminars, reading the trade
journals, and spending time with E-Discovery vendors.
Learning about E-Discovery now, before you have a
large matter with complex E-Discovery issues, will
save your client time and money in the long run. The
more knowledgeable your firm is about E-Discovery
the better job you collectively will do in hiring
the appropriate vendors.
- Meet the vendors before you need them.
Call E-Discovery vendors and ask them to either visit
you or do an Internet-based demonstration of their
services. In-person visits are always helpful because
you can “size” up the vendors. Ask for
pricing information and an overview of how they approach
the process. How do they harvest the data? How do
they sort it and process it after harvesting? Are
they able to create load files to import the data
into commonly used litigation support databases? After
you have pricing information from multiple vendors,
compare it and query the vendors on why their pricing
differs from their competitors. Seek to understand
the assumptions that underlie their pricing models.
- Don’t be afraid to leave your office.
Once you have some familiarity with the vendors,
pick the two or three E-Discovery vendors with whom
you were most impressed and go see them. In this day
and age it is easy to create the appearance of a large
operation through slick marketing materials and deft
use of Web sites. By going to the vendors you will
get a feel for how many resources they really have
and can bring to bear on a particular E-Discovery
problem. You will also get a feel for how many employees
they have and whether they sub-contract all or most
or their services. Finally, you will also get the
opportunity to ask questions of the company’s
technical people. Members of the technical staff often
bring a different perspective to your questions than
the sales people and tend to be more realistic about
their firm’s product and services.
You are going to spend your client’s money when
you hire an E-Discovery vendor. You want to make sure
you know what you are buying.
- Do not make selection and retention of
an E-Discovery vendor an ad hoc process.
The whole point of selecting someone in your office
to become the E-Discovery guru is to avoid inefficiency
and to make sure you have the ability to make knowledgeable
decisions. Your point person should be the one to
contact the vendor or vendors to obtain pricing for
a particular matter and to facilitate a conference
call to discuss the matter. You need someone who is
not completely wrapped up in the case at hand to coordinate
the E-Discovery vendor’s services, to coordinate
with other vendors who may be involved in the process,
and to make sure that the work is being done within
the confines of the budget.
- Avoid the super center approach to litigation
support vendors. Many imaging and software
companies have “branched out” into electronic
discovery and seek to offer the full array of litigation
support services. Our approach has been to avoid one-stop
shopping for litigation support services. We like
to choose vendors for their strengths. At our firm
we call this the “role player” approach.
We pick vendors for their true strengths and not for
the continuum of services they seek to offer. This
allows us to make sure we have the best available
pool of talent working on a given project.
- Check references. Ask any E-Discovery
vendor whom you would consider using on a project
for references. Call them and ask reference clients
questions about responsiveness, turnaround time, ability
to give accurate budgets, project management skills,
etc. The more the designated person in your office
knows about E-Discovery in general, the better the
dialogue you will have with a vendor’s references.
As part of the vetting process, do Internet searches
to find any articles that discuss your prospective
E-Discovery vendor. The more you know, the better
you will be in choosing a vendor.
- Do not make case-specific decisions in
a vacuum. Each client has its own unique
characteristics with respect to data storage and information
management. Putting together a plan to manage the
harvesting and review of a client’s electronic
data may require some customization and will definitely
require the involvement of your client – so
don’t cut your client out of the vendor selection
process. Your client needs to understand the process
because outside people may be coming to harvest data
from servers, desktop computers, and back-up tapes.
In a large case, data harvesting is not only costly,
but also invasive. By bringing your client into the
vendor selection process you inform both the client
and the vendor about the particular aspects of the
project. Dialogue builds understanding and understanding
enhances the efficacy of the services you provide.
The production of electronic documents and data is
now part of our litigation culture. Cost-effective managing
of the harvesting, review and production of such information
requires careful selection of your E-Discovery vendors.
If you take the time to educate yourself about the vendors
prior to actually needing them, you will give yourself
the time to learn enough information to properly vet
the E-Discovery vendor.
is a principal in the Richmond office of Wright, Robinson,
Osthimer & Tatum. Mark’s trial practice focuses
on the defense of product manufacturers, manufacturing
of industrial equipment, and pharmaceutical companies
in both stand-alone and complex multi-action litigation.
In addition to a traditional trial practice, Mark manages
the firm’s innovative Support and Information
Management and Litigation Management practices.