The Estrin Report

UNITIZATION: The Process of Separating Logical Boundaries from Physical Boundaries

Bob Sweat, a talented writer and eDiscovery expert is back today with another guest blog.  Bob, as most of you know, hails from the Great State of Texas where everything there is bigger - even the cases.

In the previous issue, I wrote about scanning as most cases still include a paper component; lots of it in some cases. As these two subjects (scanning and unitization) intertwine so closely it would be a good idea to tuck these guidelines on unitization away for future use with last issue’s article on scanning.

The purpose of unitization (logical document determination or LDD) is to locate and identify where each logical, self-standing document starts and ends.  Self-standing documents include letters, memos, reports, books, photographs, drawings, graphs, charts, or other compilations.  A self-standing individual document is determined by looking at its format and bibliographic information.  Bibliographic information refers to items that reside outside of the text (main body) of a document and include one or more of the following:

 Author:                    Person and /or Organization that produced or approved the document

Recipient:                Person and /or Organization that received the document

Copyee:                   Person and /or Organization that received a copy of the document

Title:                         Heading, subject or RE line of the document

Date:                        Date the document was originally produced  

In a typical paper collection, documents are found stapled, clipped or otherwise bound together.  For example, a fax cover, a letter and a report may be stapled together, but each is clearly an individual document considering each one has its own unique format and associated bibliographic data. The same principles apply to a group of images that have not been split into unique documents. It is important to get the logical documents determined for later use in databases, depositions, and trial.

Each paper or imaged collection is reviewed to find the beginning point and the ending point of each individual document.  A letter begins with the salutation and ends with the signature.  A report begins at the title page and includes all pages following thereafter in consecutive order including indexes, until the end of the report or last page included is located.

 Physical Attachments:

Physical attachments to a document should be considered a separate document from the parent (lead) document, if the document can stand on its own.  For example, a fax cover, stapled with a letter and report.  Each document can stand on its own, i.e., has its own bibliographic data that may be different from the attachment. You end up with three distinct logical documents for later coding purposes.

For example, you have a stapled group consisting of a fax cover, followed by a letter, followed by a report.  If you code them together, you may only get the information from the first document. If you code the information from all three, it can become confusing and laborious at search time.  If you use a vendor, they will code only the information from the first document as they cannot code information from all three for the price of one.  In the above case, if the fax is from Dick to Jane, the letter from Jack to Jill, and the report is about falling down the hill, then the information from the second and third document is lost and will not be found in a search.

 EXCEPTIONS:     Attachments to a contract are usually not separated (especially exhibits) and you should include appendices. In the case of Exhibits – these are typically kept together though they may include more than one document.  Data capture is typically performed on only the first document.  Addendums can be coded separate or together depending on the needs of the legal team.

Multiple Documents on One Page:

Some pages may have more than one document to a page. (For example: a photocopy of three different checks appears on one page.  Each check is considered a document, unless otherwise specified).  Each check may have the same author, but likely has different dates and payees (recipients).

Multiple Documents as One Document:

If a document has page numbers running consecutively, it is an excellent indication that all of the pages are part of the same document, even if the document contains other imbedded documents that would otherwise stand alone based on bibliographic information. This is particularly true with faxes where the fax line clearly shows the number of pages. Be careful as not all the pages may be there.

Duplicate Documents:

Duplicate documents are separate documents even if they follow each other in a group of pages.  (Documents that look alike may have minor differences in information that will affect the review or coding process).  In today’s world, exact copies of electronic duplicates may be deleted by matching their Hash Values.  Paper documents on the other hand can only be noted as potential duplicates from coded information or software programs that look at the document format fingerprint.  In the software case, you will get a percentage of confidence that a document is duplicative of another and have to hand compare.  Many times these end up being near duplicates.  None-the-less it is a technique that can help the reviewer determine whether scanned images are a match.

Distribution Lists:

Distribution lists should not be separated from the document they distribute.

Table of Contents:

A table of contents, when combined with the sections that follow make up one document.  The trailing sections or documents that follow the table should be examined as to whether the documents/sections that follow the table are actually part of the table of contents.  If the pages are consecutively numbered, that is an excellent indication it is one document.  If the pages are not consecutively numbered, the contents of the trailing documents must be examined to see if they logically match the subjects or topics listed in the table, and if so, consider it one document.

 Appendix:

An appendix or an index is not a table of contents. In most cases, a list of documents to follow is not enough of an indicator to group all the documents on the list as one document.

 A Word of Caution:         Care must be taken when reviewing reports, patents and other documents where the pages are typically text followed by drawings, pictures, or graphic representations then back to text.  These documents are not typically split up just because the format changes.  Pagination is a good way to determine the beginning and ending of these types of documents.

About our guest blogger:
Author of numerous articles, Bob remains a popular speaker and presenter of CLE webinars and seminars. He works currently as a Project Manager and Partner at Open Door Solutions, LLP, Dallas, Texas.  He is best known for his down to earth explanations and approaches to complex matters.  Bob holds a place on the Organization of Legal Professionals (OLP) Advisory Council.

Bob holds a Paralegal Certificate in Civil Litigation with Computer Emphasis, a major in Business and minor in Economics, several certificates from studies at Purdue University and has worked both as a paralegal and paralegal placement manager.  Bob has 20 plus years experience working with local and national firms on complex litigations and document management matters, especially as they relate to discovery, review and production. Email your questions or call: bsweat@opendoorsolutions.com (214) 643-0000.

Oops! Firm hires contract attnys & gets sued for allegedly producing privileged docs. Would paralegals make the same mistake?

 According to a post today in Ryley Carlton's blog, J-M Manufacturing Company, Inc. ("JM") alleges that the law firm of McDermott Will & Emery ("MWE") breached its fiduciary duty and committed legal malpractice by failing to sufficiently supervise a document review, and more specifically failing to adequately review documents for privilege prior to production.

JM's allegations claim that MWE represented JM in connection with a series of subpoenas issued to JM from the United States. MWE allegedly worked with JM to identify approximately 160 custodians of information and hired a third-party vendor, Stratify, to run a keyword search. Following an initial keyword search, the United States government found a significant amount of privileged documents and asked MWE, as counsel for JM, to redo its production. JM alleges that MWE then employed contract attorneys to run a second keyword search, aimed at privilege, and categorized the documents into responsive and privileged categories. According to JM, aside from limited spot-checking, the firm did not thoroughly review the categorization or conduct any further privilege review.

Allegedly, 3,900 privileged documents were inadvertently produced based upon the contract attorneys' assessment of responsiveness and privilege and the then real-party-in-interest, the "Relator" refused to return the privileged material.

    "The general reputation is that it is a low-paying, dull, go-nowhere  job."

Here's the question:  Five - ten years ago, only paralegals were doing document productions and privilege reviews.  Attorneys just wouldn't be caught dead doing that "lower level" type of assignment.  What happened?  Do paralegals pay more attention to detail?  Do contract attorneys think that working on document productions is so far beneath them that they don't care?  The document review attorney position has been generally categorized as a low-paying, dull, go-nowhere job.  Sitting in a windowless room, confined to a 3 x 6 foot fold-out table with padded bridge chair days on end while staring at document after document can possibly drive you insane. 

Did paralegals get tighter supervision because they were paralegals?  Is there an assumption that attorneys know the difference between privilege and non-privilege and don't have to be carefully supervised but in reality just might need a little more guidance? (Particularly, if they're right out of law school with no experience.)

How about the decision making process?  Are attorneys more liberal whereas a paralegal, if in doubt, will hold that document back and ask a supervisor?  Would an attorney be too embarrassed to ask?  Are there simply too many documents these days that it's impossible to supervise everything?  What is happening?

Readers, what is your opinion?  Should law firms return the job of document production back to paralegals where it probably should have stayed to begin with?  Thoughts?

"The authenticity of a found document:

Hmm, interesting problem that can torpedo a case. Does your firm's IT department employ effective document management policies?

"What seems to be the problem? Your IT organization has put in place proper procedures [PDF] for deleting electronic documents, including e-mails. So it is no surprise when as a result of litigation your e-discovery process cannot turn up a particular document. However, to everyone's surprise the document turns up on your CEO's laptop. This is a very possible scenario. You must know whether the document is admissible as evidence in a civil lawsuit.

"What do you need to know? Evidence is admitted in court only if it can be shown that the evidence is authentic. Authentic data must follow a chain-of-custody. So how does this work with a lost document that has now been found?"

Find more key questions for IT in the balance of this article from Storage. 

Author David Hill is the founder and principal at the Mesabi Group...an industry analyst firm that focuses on networked storage and storage management.

"Document Imaging: Keeping It Simple"

Author Tony DeLoera, the chief technology officer at Ice Miller, describes how to manage document imaging the right way:

"Simplicity. This was the guiding principle in our selection of a document-imaging system. In early 2005, Indianapolis-based Ice Miller was overrun with paper. With 225 attorneys, and three branch offices in Chicago, Washington, D.C., and Naperville, Ill., we decided to leverage the decision to change our office copiers as an opportunity to gain more control over our workflow.

"We needed a document-imaging system that our attorneys and other professionals could use with little or no training. We wanted our users to be able to walk up to a copier and scan documents directly to a PC desktop or to software, such as Microsoft's Word and Outlook, or Hummingbird Enterprise. We wanted a simple system so our users could copy without calling the IT help desk.

"But simplicity didn't mean we wanted a simplistic application. We did not want to scan documents only to have them scatter, unindexed, inside our IT network. All that would do is transfer our document handling difficulties from unstructured paper to unstructured electronic data. Rather, we wanted a program that integrated with our existing software (Hummingbird Enterprise, Captaris Inc.'s RightFax, Word and Outlook) and would improve our office efficiencies."

The full article is a must-read for those interested in expanding their roles into firm management...

"E-Discovery Survival Guide For Corporate Counsel"

Make sure you can do your part to help prevent "death by e-discovery." Here's the complete article by lawyers Jeanine Bermel & Art Smith:

"While no one course of action is appropriate for all corporations, there are some basic steps to prepare for that first e-discovery challenge, none of which guarantee success. On the other hand, failure to recognize the challenges of complying with the e-discovery rules is more likely to lead to disaster.

"Here are a few thoughts on recommended survival tactics to maneuver through the e-discovery minefield.

1. Update and enforce your records management policy.

"Prudence and good corporate management dictate that every business should have a records management policy [PDF]. Such a policy informs employees about the documents they are required to keep as a matter of law or regulation or business necessity. It establishes procedures for the maintenance of records, and equally important, it outlines when records may permissibly be destroyed either because the legal retention period has expired or the business necessity no longer exists."

Authors Art Smith and Jeanine Bermel are members of the Dispute Resolution Practice Group at Husch & Eppenberger in St. Louis and regularly advise their corporate clients on issues relating to electronic discovery.

"ONSITE3 Launches DXR Mobile at Paralegal SuperConference"

Good chance for SuperConference attendees to check out this new mobile document 'exchange & review' service:

"ONSITE3, a leading global provider of eForensics, eDiscovery, eReview and consulting services offering one source litigation support for law firms and corporations, is pleased to announce the launch of its Document Exchange & Review (DXR) Mobile service, provided in a portable appliance platform designed specifically for electronic data discovery, review and production. On demonstration at ONSITE3's exhibit during the upcoming Paralegal SuperConference Miami 2007, the new service utilizes a convenient industrial strength laptop-based system that can travel and be used almost anywhere, securely process 5 to 10 gigabytes of electronic discovery data per day, store up to 100 gigabytes of processed data and permit rapid searching and review from the same platform."

KMWorld: List of knowledge management vendors

If you're looking for vendors in the KM space, this magazine has compiled a thorough list:

"The KMWorld Buyers Guide is packed with leading vendors offering real solutions to knowledge management dilemmas that will help users gain and maintain control of their enterprise environment.
"There are two ways to access the information in this guide: you may select a vendor name..., linking directly to a detailed page containing information about the specific company, its products, solutions and contact information OR select one (or more) categories from the list on the right for a list of corresponding solution providers. "Participants in this guide are all cross-indexed. To develop a customized list of solution providers corresponding to your search criteria, select one or more categories from the RESEARCH CENTERS or SOLUTIONS, then click the Search button." For example, searching the 3 selections below returns 5 matching vendors: Research Centers Business Intelligence Business Process Management Collaboration Competitive Intelligence Content Management Customer Relationship Management Digital Asset Management Document Management E-mail Management Enterprise Application Integration Enterprise Search Image, Forms, Document Capture Intellectual Property Management Knowledge Management Opinion Portals Records Management, Regulatory Compliance Workflow Solutions Consultant, Integrator, Service Bureau e-Commerce Education Energy Financial Services Government Healthcare Insurance Legal Manufacturing Media/Entertainment Pharmaceutical, Life Sciences Telecom Transportation, Aerospace

"A Mouse on a Mission in the Document Maze"

Just what I've wanted: a computer mouse that smartly finds what I want in a mountain of documents:

"The new mouse does all the work of a standard model, while also letting the user skim rapidly through lengthy documents to reach a desired spot in seconds. It does this with an unusual scroll wheel that can be flicked with a forefinger; the text on the computer screen immediately starts flying past, but stops on a dime when the wheel is tapped. The speed is adjustable to let users see exactly where they are in the document.

"The mouse, called the MX Revolution, is made by Logitech, a Swiss manufacturer of game mice and other computer-input devices. Within the mouse is a heavy, finely balanced wheel that spins through distances that would normally require many scrolling motions and many minutes."

[snip]

"Erik Khoobyarian, a lawyer in Sacramento who reviewed the mouse for Logitech before its release in August, now always has the MX at hand. 'It’s a small change, but it’s made me more efficient,' he said of the mouse’s ability to scan quickly."

"E-Mail Intelligence Eases E-Discovery Headaches"

First time I've heard about this software, but sounds like it works quite well:

"Juries don't always believe what people say, but they do tend to believe what is on paper. The difference that thorough e-mail review and analysis can make in the outcome of litigation is dramatic, and attorneys cannot risk overlooking key evidence that can make or break a client's case.

"More and more legal cases today involve the submission of e-mail as material evidence -- creating a phenomenon that law firms and corporate enterprises are struggling to manage. Across the industry, costs and workloads are spiraling out of control for law firms and their clients.

"On average, e-mail review and analysis now accounts for 20 percent to 50 percent of total case costs, with many firms billing over $1 million per month. E-mail review and analysis costs for high-profile cases involving unusually large volumes of e-mails and attachments, such as SEC investigations, can run as high as $5 million.

"At Pooley & Oliver, we have taken a preemptive approach in this area by offering a novel process for reducing cost and improving efficiency of the e-discovery process using the Clearwell Email Intelligence Platform.

"Clearwell has lowered our costs by as much as 82 percent, providing significant savings for our clients. It also allows us to reinvest the labor savings back into our practice by freeing up resources to better serve our clients."

Article by Scott Oliver, a partner at Pooley & Oliver LLP who has specialized in intellectual property litigation for more than a dozen years.

"Ten Tips for Successful KM in Law Firms"

Very helpful tips for tech-oriented paralegals interested in the challenging field of knowledge management (KM):

"Law firms struggle with knowledge management. On the one hand, law firms are classic examples of information and knowledge businesses. On the other hand, managing lawyers has often been likened to 'herding cats.' Combining 'knowledge' with 'management' in the law firm setting has proven to be surprisingly difficult.

"The legal landscape is littered with the debris of abandoned brief banks, ineffective document management systems and little-used practice management tools. We have reached this point not through lack of effort or failure to make the required investments, but rather because of difficulties inherent in today's practice of law. Some of these difficulties are well-known – emphasis on billable hours, lack of incentive structures, and the legendary 'busy-ness' of lawyers. Others are more subtle and perhaps less subject to change.

"Walk into the office of almost any lawyer. What are you likely to see? A desk piled high with files and scattered papers. Files and papers covering the floor, credenza, chairs and any other available space. A computer monitor covered with Post-it notes. The lawyer's secretary's cubicle may look no different. How realistic is it to think that we can transform this picture into a sleek, well-oiled, computer-based knowledge management system?"

Sounds oh-so-familiar, doesn't it?