In 2012 Elluma Discovery interviewed litigators at many law firms throughout Los Angeles, California ranging in size from 2 to over 1,000 attorneys. I have always suspected that there is a veritable smorgasbord of approaches to dealing with discovery, but I wanted to get some real-life data. You see, working at an electronic discovery services provider I process and analyze evidence ranging from paper, to native files to cell phones and increasingly, video and databases.
As the founder of a 10-year-old e-discovery services provider I fight on the frontlines to tame an always-evolving adversary of electronic evidence. I wanted to find out was what types of evidence litigators most commonly encounter and their approaches to tackling it. What I found surprised me.
How do litigators approach discovery?
My goal was to understand real-life processes used by real-life litigators at a wide variety of law firms. I should mention up front that my approach was not designed to withstand statistical scrutiny. Although anecdotal, I believe what I found accurately represents the state of litigation in Los Angeles. Through our conversations my colleagues and I discovered that firms array themselves along an evolutionary scale of discovery techniques ranging from pure paper to primarily electronic. How would you rank your firm on this scale?
I learned there are five primary rungs on the e-Discovery Evolutionary Scale.
e-Discovery Evolutionary Scale
- Paper only
- Scanned paper
- Scanned and OCRed paper with Acrobat
- Scanned and OCRed paper with a legal review tool
- Native documents with a legal review tool
1. Paper only
Somewhat surprisingly, a large number of firms of fewer than 50 attorneys receive and produce boxes of 8.5×11” paper. These firms typically do not specify or negotiate for alternate forms of production. Many firms view it as a tactical advantage to ‘paper’ the opposing firm in hopes of running up their costs. This type of firm typically does not have much experience with document review on a computer.
I encountered firms up to 100 attorneys that have recently assembled document reviewers in conference rooms and used sticky notes to mark and separate important documents. In some instances the review process lasted months and involved dozens of attorneys. I can only imagine how difficult it would be to keep track of all the paper and how difficult it would be to correlate key events or create chronologies activity. Some firms scanned in documents only as a ‘backup’, but did nothing with the resulting electronic files.
2. Scanned paper
A little farther along the evolutionary scale I met with several firms who said that they had become overwhelmed with paper and now reviewed discovery electronically. I found quite number of firms that scanned in the discovery they received and saved results as Acrobat (PDF) files. Attorneys would then review the discovery on their computer. Some used dual monitors and would view documents on one screen while typing a brief on the other screen.
While this approach dramatically reduced the amount of paper a firm has to deal with, many attorneys complained that they were unable to search the discovery. Many said that they believed they were spending less time reviewing discovery, but felt that they could be more efficient if they were able to search across the document sets.
Roughly half of the firms I interviewed fell into these first two categories.
3. Scanned and OCRed paper with Acrobat
Quite surprisingly a much smaller number of firms apply OCR to their scanned paper
Ray Kurzweil, inventor of OCR, commonly used in eDiscovery
documents. OCR (Optical Character Recognition) is a software process developed by (Ray Kurzweil to make typewritten words searchable. Kurzweil introduced the technology commercially in 1978 and ultimately sold it to Xerox. Today, scanning a document is somewhat akin to making an electronic
photocopy of a document. However, instead making a copy of a piece of paper, you end up with a computer file – usually a PDF. Like a photograph, the resulting file is not searchable. Running an OCR process on a document makes the text in the document searchable.
I found that firms who OCRed their discovery often searched the documents using a free tool such as Adobe Acrobat Reader. Litigators that recently gained the ability to search their documents electronically reported greatly increased efficiency. Frequently attorneys told us that they spent far less time reviewing irrelevant documents and were able to locate documents central to the case in far less time. Litigators said this was particularly important when reviewing discovery provided to them by their own clients.
Next article
In the next article, we’ll look at law firms who:
1. Scan and OCRed paper with a legal review tool
2. Review native documents with a legal review tool
