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New Trends in E-Discovery - Auto Coding Comes of Age

by Rhonda Jenkins of Hewlett-Packard's Legal Center

In the brave new world of electronic discovery (e-discovery), lawyers collect, review and produce email and other electronic documents in lieu of (or in addition to) banker's boxes full of paper. HP multifunction devices make it easy and affordable to scan paper documents into electronic files and today's sophisticated auto coding and e-discovery technologies help take the expensive grunt work out of the document review process.

Scaling Mountains of Electronic Evidence

There is no turning back the clock on the digital electronic information age. According to a study conducted back in 2000 by the University of California, Berkeley, over 93% of information is created and stored electronically. On average, each person who uses a computer creates more than 250MB of data per year. Printing this much data would produce a stack of paper more than 20 feet tall!

As electronic discovery requests are becoming the norm in the legal industry, the challenge for today's litigator is how to effectively capture and mine billions or trillions of bytes of data to find the nuggets of information that will help win the case.

Coding for Speed and Efficiency

Over the past two decades, savvy lawyers have successfully used computers, scanning hardware and litigation database software like CT Summation™ and Lexis-Nexis Concordance™ to store and manage litigation documents, transcripts, production sets and trial databases. Traditionally, when a document collection is produced, the litigation team reviews and tags the documents for relevance. Relevant documents are coded with key details like the date, the name of the author, the recipient, the document type, key issues, etc.

Note to the "old school" practitioners who have not yet embraced litigation support technology - Using a coded electronic database in the place of tabbed three-ring binders is like flying a supersonic jet instead of driving a covered wagon. Electronic databases are fast and efficient and serve two primary needs that simply cannot be fulfilled with a set of binders alone.

First, the litigation team can capture and share the knowledge gathered by the coder during the document review. Second, the team can use database software to cross-index documents. Users can enter search criteria to instantly narrow the universe of documents or sort documents by different categories. For example, instead of spending hours or days hunting and pecking through bankers' boxes full of documents or a shelf full of binders, an attorney or paralegal can perform a database search to find all correspondence from Mr. Jones to Mr. Smith, created within the past three years, which make reference to Company XYZ - all within a matter of seconds!

Achieving ROI with Auto Coding

Although having a coded database results in speed, efficiency and downstream payoffs, the upfront costs to scan, code and load paper documents into an automated system can be a bit hard to swallow - especially for a case on a limited budget. With hourly billing rates in the U.S. for legal assistants and associates ranging from $85 to $200 per hour, many law firms have started to cut discovery costs by turning to offshore service providers that have operations in English-speaking countries like India and the Philippines.

Offshore document coding can cut 50% or more from the bill; however, the final tab for coding tens or hundreds of thousands of pages can still be hard to stomach. However, as the scale of documents expands, the return on investment (ROI) for using the latest litigation support technologies like automated document coding systems becomes more compelling and practical.

For example, if coded in the U.S., 10 banker's boxes (roughly 25,000 pages) can cost roughly $0.70 to $1.00 per page (or $17,500 to $25,000) to scan, code and load into an electronic database. Sending the same set of documents to an offshore facility for coding could save the client up to 50%. Even greater cost savings can be achieved with today's automated document coding technologies and e-discovery management tools.

Mixing E-Discovery with Paper

They say be careful what you wish for - and electronic discovery is no exception. Although the majority of today's documents can be easily produced in electronic formats like native Microsoft Outlook .PST files and Microsoft Word and Excel, productions can also include a sprinkling of electronic scans of paper documents produced in Adobe .PDF or .TIF image format. For small to mid-sized firms, workgroup multifunction devices like the HP Color LaserJet CM4730 Multifunction Printer perform double duty, providing fast 31 ppm color printing and scanning capabilities. Up to 50 sheets at a time can be loaded and scanned directly into Adobe .PDF and .TIF electronic format that can then be read by auto coding vendors like Valora Technologies and Stratify.

Auto coding vendors provide software that has special computerized search algorithms that can programmatically organize and code native electronic documents and scanned files alike. Instead of using paralegals and associates to code and organize the documents, these new age litigation support programs work by automatically extracting key bibliographic data from the document like the author, recipient, date, subject, etc. The computer evaluates the relationships between words and concepts and automatically categorizes documents into logical segments. The information can then be assembled into an indexed database file, which can be used in an online review tool like Stratify or loaded into the firm's familiar litigation support applications like CT Summation™ or Lexis-Nexis Concordance™.

Final thoughts...

Today's auto coding litigation support tools are designed to address the unique challenges presented by e-discovery. The ability to cull through tens or hundreds of gigs of electronic data to distinguish duplicate email messages from near duplicates and identifying the differences between a scanned version of a paper document and an email attachment of the same document are but a few examples of areas where today's new e-discovery tools are indispensible. Whether your firm is the propounding or responding party, the more you know about the evolution of today's auto coding and e-discovery tools, the better prepared you will be for your next document production.