I look forward to reading Craig Ball's "Ball in Your Court" article in Law Technology News each month because they are thought provoking. To futher Mr. Ball's article in July's LTN, "Fields of Gold- Part 2 of our 'how to' guide to effective, defensible e-discovery searches" (http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=3259581&category_id=27902), what must you do to prove to a court of law the efficiency of a search? How does one go about proving the negative (i.e., providing proof that some piece of evidence doesn't exist)? The short answer is to set up a process that is consistent and repeatable across all custodians, data stores and increments of data. That process must provide a tracking mechanism not only for the steps taken and results, but also should include the reason(s) for the decisions. Project management is key and incorporated as a matter of course by most experienced litigation support professionals.

Another way to approach the challenge is to outline a series of questions that goes back to old journalism techniques (i.e., the five W's- who, what, when where, why). The big question is, of course, "How?" with the triple constraints of scope, time, and money.

• Who - Which custodians should be reviewed; who will perform the searches; who should make the decisions for the review or for each phase.
• What - Is all the data necessary for each custodian; what data can be included and more importantly excluded; did the parties agree to the "what" in the meet and confer; what is the workflow and review methodology (e.g., cull and review a subset of data for production vs. cull and produce results outside of non-responsive/privilege search with only a sampling of the results); what are the risks; what are the core requirements for a review application to meet the needs of the review; what is the cost of different review approaches and does that meet the client's budget weighed against the risks.
• When - What are the deadlines for each phase of the litigation cycle (e.g., meet and confer, start and cut-off of discovery, deposition, briefing & hearing schedules, trial); what are the optimal and likely schedules for the harvesting, review, and productions given resources allocated to each phase.
• Where - Where will the data be staged and reviewed (local, distributed, national/global review).
• Why - For each of the above, reasons should be included (e.g., why custodians a, b, c; why certain data was included/excluded, why there is a deadline (court imposed or otherwise); why location X vs Y).
• How - How does each phase and milestone get accomplished. Usually it involves human (personnel, vendors, 3rd parties) and not-so-human resources (hardware, software, workflow & processes). One of the biggest omissions I've seen is a lack of a communications process to ensure key stakeholders, clients, and team members are to be kept informed. How will that be done (e.g., meetings, email, more formal document). This then turns into a loop of who will provide what and when.

Using this technique as a launch pad for planning and decision-making during each phase will assist in being prepared for risks that are unknown unknowns.

Monica Paskvan, PMP

IPRO Tech, Inc. is pleased to announce 2.0.0 major release of IPRO eReview® by the end of April, 2009. IPRO eReview is a review application that provides distributed access through the web that requires no installation of software and allows a jumpstart on review and analysis of the evidence. eReview's integration with eCapture, IPRO's electronic processing software that is extremely scalable, makes eReview the fastest streamlined workflow at an unbeatable value for its clients. eReview is easy to use and intuitive, making training minimal, and provides TIFF on-the-fly so that additional passes for redactions don't have to be performed eliminating extra time and reducing review costs. New features to be released include:  

• Batch selection criteria (automatic, file type, saved search and tags) 
• Rule Based tagging within tag group (providing the ability for a custom and specific workflow)  
• User defined hotkeys (including hotkeys for tags) 
• Case/Batch selection (batch selection for Reviewers for assigned batches) 
• Manage Clients (Administrators can create a hierarchy to organize client data. This also provides great flexibility for assignment of licenses allowing the assignment to be on the parent client level or sub-client level with the rise and fall of workloads on projects.) 
• Manage Administrators (Administrator accounts are related to client hierarchy. Licenses are now consumed upon launch of the Review database window rather than upon login into the portal and Administration area. Thus a license will only be used for actual review and not for Administrative work.) 
• Manage Users (assignment of permissions and roles for users is now related to the client hierarchy.) 
• Collapsible & Sizeable Panels (providing the ability to size areas for tags, notes, and document relations.)  

Contact your legal account manager via sales@iprocorp.com or visit us at our annual User Conference in Phoenix, AZ on May 14-15, 2009. Make a reservation by registering at http://www.iproconference.eventbrite.com/ .