eDiscovery Review: Selecting a Vendor, Part 1

There are many factors that need to be considered when selecting a third-party vendor for the review portion of your electronic discovery project. Optimally, the vendor requirements are detailed during the initial planning phases of the project, and the vendor of choice is involved in - or possibly even charged with - the collection, forensic analysis and restoration portions of the project. The more involved your vendor of choice is in the overall development and execution of the project, the smarter and more prepared it will be regarding your needs and requirements.

Considerations when selecting a vendor include the financial condition and longevity of the firm, the breadth of their services, the methodologies behind their technical processing and the experience of their project managers. The first and foremost consideration when selecting a vendor is to assure that you have a clear understanding of the goals and objectives of the review: What exactly are you trying to accomplish for your client? Which vendor most adequately and efficiently meets those needs?

The section on Planning the Review outlines the various planning decisions and objectives that need to be determined in order to foster an effective review process. Once those objectives are established, the selection of a vendor should focus on identifying the vendors that will help you succeed.

There are several high-level choices to be made when examining a review platform for your document review. Should you go with a native format vs. a TIFF/PDF format, or should you perform the review through an online system or on an in-house platform? Other factors to consider include the functionality available within the platform, IT issues and cost considerations, as well as vendor reputation, reliability, scalability and security. We will examine each of these areas and provide you with some tools and guidelines to assist you in making an effective decision.

Online v. In-House

A critical decision in your vendor selection process is to determine whether you are performing an in-house review, that is, using an application that is loaded and supported within your internal network, or if you are using an online, or web-based review tool with hosting provided by a third-party vendor.

Software vendors, responding to the demand for better ways to manage and present evidence, have developed off-the-shelf solutions that litigation firms can leverage instead of trying to build the solutions themselves. The top in-house litigation support systems all have their pros and cons. It is essential that each firm carefully select the system best suited for the type of litigation the firm handles the most. Standardizing on one of the systems will provide the ability to implement standard policies and guidelines for conducting electronic reviews. Many firms have standardized on more than one system to provide them with the ability to scale up, or down, regardless of the size or type of case that comes in the door. In-house legal departments have an opportunity to standardize on one of these systems, allowing for better control of what gets turned over to outside counsel for review

This type of endeavor involves a significant up-front investment, and the following may need to be acquired:

1. Scanning, coding and OCR software and hardware
2. Electronic data processing software
3. Document repository and review tools
4. Adequate storage and file space on the corporate network
5. Trained staff and ongoing support

Another option is to go with a web-based or online review tool. These systems typically allow access through any internet browser. While an online tool offers less direct control over the project, it does offer increased flexibility, as there are a multitude of vendors on the market with different review features and functionality that can be matched to the needs of your matter. Most online vendors will provide the full range of services needed to scan, code, process and load your data into an online repository and make that system available through a secure web site. Added security may be enhanced through the use of a Virtual Private Network (VPN) or Secure Socket Layer (SSL).

There are an increasing number of vendors that offer the best of both worlds, providing you with an in-house software application similar to their online environment. Depending on the nature and size of the case, you can use your in-house tool, or migrate to their online system seamlessly at any point in the project.

The volume and format of the documents collected for review will often dictate where the repository will be hosted. Also, the distribution of the review team will determine whether or not the repository needs to be hosted on an enterprise wide area network, on a Citrix-type system, or on a secure extranet. Every firm has limitations to what it can host internally. Items that need to be considered to determine if the project will be hosted internally or by a third party include the following:

• Who will need access? Some organizations have policies that might prevent other organizations any access to their network. With a multi-party litigation, it may be necessary to use a web-based system to allow all parties equal access to the data.
• Timing - hardware/ software/ security may not be able to be established in time for the needs of the review.
• Expertise - there are companies who manage the workflow of a review, and if your firm is new to the process it could be good to utilize a third party's experience.
• Staffing - needs for reviews can cause peaks and valleys in resources needed. Planning for this in a review process can be managed by using a third-party hosting company.
• Support and training - be aware that availability of ongoing support and training is a critical factor to consider. If you choose an in-house product, you will need to dedicate time and resources to make upgrades to the system and for additional user and administrator training. By contrast, any top-tier vendor will offer ongoing training, support, and 24-hour customer service.
• Security and infrastructure - can the firm's internal network handle the proposed amount of data and users estimated for the project?

Native v. TIFF/PDF

Historically, most "electronic" review was done using a TIFF or PDF image of the document. The electronic data was converted to an image. The text and metadata may also have been extracted and entered into a database so that the documents were searchable, and the reviewers would look at the rendered image.

Today, most electronic discovery vendors provide the ability to perform your review in a TIFF or PDF format, and several vendors also provide a review platform that allows you to convert the data to an image (TIFF/PDF) if you so chose, but also keep a link to the data in its "native" format, if native format review is desired. When we speak of a native format review, we mean retaining documents in their native application (MS Word, MS Excel, etc.) and reviewing the documents on a platform that allows you to view the document from within that program or with a generic viewer rather than converting the documents to an image file.

Vendors who offer review within the native format must retain the integrity of the native file so that the review does not cause any spoliation of the underlying native file. This is typically done by extracting the metadata and text of the file into a database for searching purposes and retaining a link to the native file in a read-only format. These safeguards may not be in place if you review documents natively from your workstation. The mere act of opening a document may change pertinent metadata, so be cautious and understand the differences between a "native review" through an electronic discovery vendor and a native review performed on unprocessed files at your workstation.

Email files are typically not retained in their native format, but may be handled in several different ways, with most vendors converting email files to html or a plain text format, while keeping the email attachments and file system data in their native format. Because relationships between emails and attachments must always be maintained, reviewing e-mail in a format that preserves the metadata, conversation threads and attachments is most desirable.

To address the inherent difficulty in making sure that every reviewer's hardware has all of the necessary applications properly loaded on his or her workstation in order to view the native documents, many vendors also offer the use of a generic "viewer." These viewers (such as QuickViewPro) convert the native document to a plain html format that can be viewed in any browser or within the viewer itself. This eliminates the need to have the application loaded on the workstation.

This issue can also be eliminated by having all documents converted to a standard image format, such as TIFF or PDF. A benefit of this type of review is that it may reduce the amount of time it takes to open and close the applications as the reviewer moves through the documents.

There are pros and cons to each of these review formats. Using an electronic discovery vendor whose system keeps the documents in their native format during review provides these benefits:

1. It saves the time and expense of converting the entire dataset to TIFF/PDF prior to review, thereby saving the cost of imaging documents that are not going to be produced.
2. It allows you to see and review data that may not appear in some types of images such tracked changes, formulas and hidden rows or columns.
3. It ensures that potential spoliation from inadvertently opening a native file is eliminated.

Conversion to TIFF/PDF for review provides these benefits:

1. It gives reviewers a standard, locked in formatting for all documents.
2. It gives you control over what metadata, and hidden information is produced to the opposing side.
3. Click-through rates from document to document may be faster.
4. Documents are in a production-ready state, so production timelines may be reduced.

It should also be noted that if you choose to perform a purely native review, and then produce in a TIFF or PDF format, you should ensure that your reviewers examine the documents fully, including hidden rows, columns, headers, footers and track changes. This information may be exposed in an image production, so you must be sure that it is reviewed for privilege. A TIFF/PDF production from native documents may take longer to perform if there are conversion issues or a high percentage of large spreadsheet files.

Many vendors are now offering a TIFF-on-Demand service, which generates a TIFF/PDF image as soon as the user requests it. This process can greatly speed up the production process as well as instantly provide an image for redaction. Some vendors also generate image files during the initial processing, and offer access to both the native and the image within their platform.

There are no clear-cut rules surrounding the choice between native vs. TIFF. Rule 34 of the Federal Rules of Civil Procedure requires that parties produce documents as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.

It seems that parties would be required to produce natively, but the courts have long accepted alternative formats, include TIFF/PDF images, as long as the "text" of the documents is provided in a searchable format. In Zakre v. Norddeutsche Landesbank Girozentrale, 2004 U.S. Dist. LEXIS 6026 (S.D. N.Y., April 9, 2004), the court addressed the right to request a certain file format. The court found that the defendant was not obligated to provide more than a text searchable format.

The native vs. TIFF/PDF decision may be driven by the requirements of your production. If the requesting party has asked you to produce in a native format, it may not be a wise choice to convert everything to TIFF/PDF first, only to have to revert back to the native format for production purposes. On the other hand, you might have more control over your production if your images are in a uniform converted format.

System Functionality

The features and functionality provided by the review platform is probably the most important factor when selecting your vendor. If you have done your homework and took the time in your planning process to define your requirements and review strategy the selection process can be performed systematically. Frequently, a matrix defining the essential requirements can be used when comparing vendors and can greatly simplify the decision making process.

The following outlines some of the basic review features that need to be included in a review system and questions to ask the vendors regarding their functionality:

Tag, Code or Annotate the Documents

This may be simple Responsive, Non-Responsive and Privilege coding, or in-depth subjective coding. The system should allow you to create your own coding scheme and apply it to the documents loaded into the system. Some questions to ask are:

1. Can the administrator add codes as needed?
2. How many codes can be used?
3. Can emails be coded separately from their attachments or are the bound together?
4. Can we do batch coding of, or batch delete coding from, a large group of documents?
5. Does the system provide tools or safeguards against inconsistent coding?
6. Can you auto-code duplicates with the same code? If so, is there a way to apply an exception to a particular document(s), and how are family sets handled?
7. Can you enter attorney notes, and are they searchable?
8. Can documents be highlighted?
9. Can documents be easily redacted online?

Search

The review platform must allow basic Boolean or other robust searching of the text and metadata of the documents. Phrase, proximity, wild cards, concept, fuzzy, near-dupes and other types of search tools are beneficial, but their importance will be determined by your review strategy. The system should also allow you to sort your results by various criteria such as date, custodian, and subject line.

Organization Tools

The ease and simplicity of creating logical sets of documents to assign to reviewers is essential. You should ask:

1. Can the administrator create his or her own logical review sets?
2. Can the administrator easily assign these review sets to a user?
3. Can the administrator monitor the progress being made on each review set?
4. How many review sets can be generated in the system?
5. How many can be assigned to a single reviewer?
6. Can access to a review set be secured from other reviewers?

Integration of Electronic and OCR/TIFF Data into the Same Platform

Most discovery projects have both paper data as well as electronic. Identifying a vendor whose platform can handle both formats will allow you to centralize your review in one place.

Production

Your vendor must be able to meet the production requirements as determined by your overall strategy. Most vendors can produce TIFFs or PDFs, but some productions now require native productions or load files for Litigation Support databases such as Concordance or Summation. If that is the case, be sure to fully understand the capabilities of the vendor around generating native documents. Many of these issues will be covered in more depth in the Production module, but you should factor in these issues when selecting the review platform. Questions that should be addressed here include:

1. Can the vendor handle TIFFs, multipage TIFF, PDFs or native productions?
2. What type of load files does the vendor have experience generating?
3. Do they have full Bates numbering and other branding capabilities?
4. How do they handle native production of emails?
5. How does the vendor handle attachments? And do they retain the connection to the email?
6. Are the documents identified with any unique naming or numbering?
7. Can the vendor create digital signatures or a simple hash of the documents to assure security?
8. Can they reintroduce produced data back into the online review platform and provide production tracking?
9. What is the turnaround time to complete a production?
10. Can they handle multiple productions of the same data with multiple prefixes and bates numbers?
11. How are files processed before they're converted to TIFF or PDF (i.e., are columns expanded, print areas cleared, speaker notes produced)?
12. How do they handle dates codes?
13. Does the vendor support bringing the data in-house after the initial review is complete?

Redaction

Depending on your review requirements, redaction capabilities may be an essential feature for your review. If you are in a native review platform, be sure to understand the workflow the vendor uses to generate and post TIFFs for redaction purposes. Many vendors now offer TIFF-on-demand so there is no delay in getting the redaction accomplished.

During the production phase, you will want the text that has been redacted to be removed or hidden within the produced dataset. It is important to understand how the vendor handles this procedure.

Batch Printing, Download or Emailing

The system should have some functionality to print and/or share documents offline. Be sure to understand what capabilities you have available and any limitations or possible hardware or software requirements. Also ask if your documents can be printed with overlays.

Administrative Functions

Administrative functions in the system should include the ability to:

1. Create new users and assign passwords
2. Apply security to dataset as needed
3. Generate review sets and dynamically assign sets to reviewers
4. Monitor productivity of users
5. Monitor review set completion
6. Create your own production sets. If not, can you review the production sets prior to bates numbering?

Reporting

The review system should allow you to effectively manage and report on your review team and document set. These reports should be produced daily, or even better, a dynamic report generated through the administrative function in the system. At a minimum, it should provide the following reports:

1. Daily User Productivity report that tracks volume of documents reviewed and tagged by each reviewer.
2. Daily Documents Reviewed report to monitor volume of documents completed and volume remaining.
3. Data reports breaking out the review data by multiple criteria: custodian, date range, recipients, etc.
4. Search term frequencies reports.
5. Production tracking reports.
6. Privilege Log creation.
7. Chain-of-Custody reports.

Joint Defense

If you are part of a joint defense group, you need to assure that the vendor you select can handle multiple parties and provide effective security to the data being used by multiple parties.

Other Review Features

Other review features that are not essential, but certainly beneficial, may include:

• Hit highlighting
• Concept search
• Auto-categorization
• Email threading
• Email visualization tools
• TIFF-on-demand

Source: EDRM (edrm.net)