With the use of technology now a mainstay in the business environment, electronic discovery has become a part of everyday litigation life.

As our reliance on technology continues to grow, vast amounts of electronically stored information, or ESI, are produced.

Overlooking ESI during discovery may negatively impact your ability to zealously advocate for your client, as you are likely to miss important information that could win your case. There is often a large volume of evidence to manage that may be found in many formats, and a variety of storage locations.

E-discovery preparedness and knowledge of new technologies will help you and your client move closer toward achieving a favorable, cost-effective result in a complex and often exceedingly expensive process.

Be prepared

The complexity of e-discovery requires a proactive approach to understanding how your client organizes and stores data, and courts are increasingly growing intolerant with counsel's e-discovery shortcomings. Developing an e-discovery response plan will enable you to effectively engage in the e-discovery process, and may help avoid sanctions.

Your e-discovery plan should include: procedures for implementing and following litigation holds; a preservation plan; custodian identification and interview procedures; a list of available internal resources; and the consideration of external resources. In addition to the plan, an e-discovery response team should be designated. The team should include outside counsel, in-house counsel, information-technology staff, and human-resources/compliance staff. The response team should maintain knowledge of where company data resides, how data is maintained, how data can be accessed and when data is destroyed.

In addition to the e-discovery response plan and team, document-retention policies should be designed and implemented. Courts will consider the existence of, and adherence to, document-retention polices in the event of preservation failures.

There is a fine line between good data housekeeping and overzealous document destruction. A reasonable, good-faith balance must be struck between an organization's duty to preserve relevant data and its business needs to continue operations. In order to develop a defensible document-retention policy, formulate document-destruction schedules based on document type, legal requirements and business needs. Employees must be educated on the organization's retention and destruction policies to ensure that they are properly adhered to. It is also important to implement procedures for ensuring that document destruction can be quickly suspended when the need arises.

When to call in outside help

Developing policies for electronic-discovery preparedness also requires determining when outside help may be needed. Prior to discovery, assess the internal resources available for handling data and develop a plan for when you may need to call for help.

Outside assistance should be sought when internal IT staff lack the necessary training, experience or bandwidth, or when potential conflicts of interest may harm your case. Qualified vendors can assist with such things as developing a cost-effective discovery plan, identifying sources of discoverable information, assessing discovery burdens and costs, and providing expert testimony in court. Implementing and following these e-discovery-preparedness policies will allow for cost savings in the long run.

Data reduction

The large volume of data associated with ESI is the primary factor in the complexity and costs associated with e-discovery, but there are ways to minimize the volume of data and contain costs.

One method of decreasing data is thorough preparation for the Federal Rules of Civil Procedure Rule 26(f) meet-and-confer conference. Having gathered the relevant information through the steps outlined above in your e-discovery plan, you'll be able to work toward narrowing the scope of data that must be reviewed and produced by negotiating with opposing counsel.

Another way to minimize volume is by filtering and culling the data via custodians, keyword searching, file types, date range and de-duplication. Approximately 75 percent of your documents can be eliminated by using these filtering options. Decreasing the amount of data by that significant of a percentage will lead to noticeable cost savings.

Cost containment may also be achieved by increasing the efficiency of the review team. One way to increase efficiency is by leveraging technology that allows for efficient grouping, management and searching of your data. Topic grouping, or using technology tools that read documents automatically and group them by topic or theme, is a way to double or even triple your review rates. By using this technology you can find relevant information faster, and with fewer billable hours. It enables better assessment capabilities; filtering and culling; prioritization of topics and documents; and categorization of responsive and privileged documents, resulting in time and cost savings.

Searching technology is also rapidly developing, and one up-and-coming trend is concept searching. Concept searching allows a user to enter a keyword or phrase and obtain conceptually related items. Using this search technique can identify associated terms and concepts, even if they do not match exact search terms. This technological capability delivers faster and more accurate results than conventional searches. For example, in the case of litigation related to the crash of a Boeing 727 aircraft, a query for that model would also retrieve documents concerning "Boeing," "77," "B77," "airliner," "plane" and other pertinent topics without having to search for each permutation individually. The search may also turn up technical terms associated with the structure of the aircraft or other crashes, even if the user is not familiar with those terms and would therefore not search for them.

While e-discovery can be a daunting and costly process, having preparedness policies in place and utilizing technology can help simplify the process and decrease the potentially immense costs associated with ESI.

Rhonda Oliver, an attorney, is legal consultant for Eden Prairie, Minn.-based Kroll Ontrack, and Jim Tocha is executive director of Exacta Legal Document Solutions in Buffalo. They can be reached at roliver@krollontrack.com and jtocha@exactalegal.com.