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August 11, 2009

Highway Robbery?

By Anne Kershaw & Joseph Howie

If you send an e-mail to three people, your system keeps one copy, with all three people listed in the "To" field. If you need to see all your e-mails to just one of those people, you search for that name. It's still just one copy. Indeed, it would be silly to have multiple copies. The same holds true for document discovery repositories, yet a recent survey suggests that lawyers still don't "get it," and often insist on keeping multiple, unnecessary copies.

Lawyers who fail to check for duplicates across multiple custodians, instead removing only duplicates from within the records of individual custodians, end up reviewing at least 20% more records on average. Whether or not their document review bills are ever audited, these lawyers are not meeting their ethical obligations to both clients and the justice system.

Read more here.

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Comments

Dear Anne and Joseph:

I agree with your comments as to the need to re-examine de-duplication. There is good technology out there today to reduce duplicates between multiple custodians (inter-custodian) and this is, in fact, the way some email systems and archive systems store emails - as a single copy with links to multiple mailboxes. You might say it is the way that they are stored "in the normal course of business."

However, there is also a difference between reviewing multiple copies and producing multiple copies. The decision to request (or require) multiple copies to be produced need not mean that the review team has to review multiple copies.

There are several review platforms that allow the review team to suppress duplicates during review (allowing a single coding decision to affect all related copies) and to un-suppress duplicates during production (allowing all copies for all custodians to be produced).

The real problem is that lawyers (and most people) consider emails to be stand alone, atomic documents. In reality email is often created and stored as a relational database record. True - there may be metadata variances between two emails - but the database record structures allow these to be tracked and maintained. An example of the type of metadata that may or may not be significant in a document review is the "folder name."

In fact "folder name" may be the only place where the recipient of an email can register their interpretation, their value, of the email. Certainly the "deleted items" folder makes an impression. As does the "Vacation", "Joke" or the "Board of Directors" folder. While this may not matter 99% of the time, at others it may matter - very much.

I'm not sure that the agreement to produce emails on a per-custodian basis, though, is a per-se ethical violation. That would really have to be situation dependent. I certainly don't have any clients that are choosing to review more documents than necessary.

In fact, some corporate clients are asking their outside counsel to manage document review, but not to handle the larger volume "first pass review" themselves. In those cases the lawyers would be economically indifferent to the volume of documents.

I believe the situation to be one of education. It's taken a few years for the bar to become adept at email collections and productions. We're only now beginning to see the more mature practitioners take regular advantage of all the available cost saving techniques.

And, quite honestly, sometimes the adoption of those techniques is risky in-and-of itself. As my favorite quote goes "In theory, theory and practice are the same. In practice, they are not."

I know of examples where parties have adopted advanced technologies for review and production that, today, they can neither explain, nor reproduce.

However, I think that raising this issue is key, and an important part of educating everyone as to the true, underlying nature of email and email production.

Sincerely,
Dan

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