Emails often comprise the bulk of the digital documents involved in the e-discovery process of corporate litigation cases. Depending on the case there could be 100,000, 500,000 or one million emails, perhaps from around the world, involved at the outset. The task at hand is to electronically gather them together and identify only those that should be reviewed by a lawyer because they may be relevant to the case.
This may seem like a daunting task, but with the availability of modern technology to gather emails and email threading software to organize them, it need not be.

In order to gain a grasp of the scope and potential cost of an email discovery project containing many emails, it helps to reduce the sheer volume of emails to a common denominator. Digital documents like emails are measured in gigabytes, a term which many people, including lawyers, may not be totally familiar. For better understanding, 500 gigabytes of emails would, if printed, fill 500 pickup trucks.

Capturing Designated Emails

To get this aspect of the eDiscovery process started, unaltered copies of the initial truckloads of emails must be captured. To accomplish this, a law firm or corporate legal department can choose to retain an eDiscovery provider with technology to forensically copy, collect and store the emails.

However, if they have the technical ability, they could do this themselves. The cost of capturing and storing these emails is normally based on the number of gigabytes they represent. A significant eDiscovery cost factor is the amount of time it will require for trained lawyers to review and tag for production those emails thought to be relevant to the case. The basic operating strategy to minimize these costs is based on the premise that not every email needs to be reviewed by the lawyer.

Some have no relevancy to the case at all and many others, perhaps hundreds or more, may deal with a relevant topic but are duplicates so lawyers need not look at all of them; but reviewers do. One method to narrow the number of relevant emails is to batch them, maybe by chronological order, and assign different batches to different reviewers. One problem with this approach is the presence of duplicates that may have gotten into different batches. This could cause multiple reviewers to spend time—and thus money—reading the same or similar emails several times. Threading software views emails as a mere collection of words. It organizes emails to indicate a conversation thread.

The lawyers involved in the case can also filter and prioritize emails based on key identifiers associated with the emails they are seeking. These might include the sender, recipient, dates sent or key words in the content or attachments. This software can electronically scan all the original emails. It will then group them together, including all duplicates based on threads of communication. When a lawyer is tagging documents for responsiveness and non- responsiveness, having emails threaded by conversation can save great amounts of time. They can often identify the full content in a chain of emails by simply looking at the final one in the chain and can make a tagging decision for the entire chain in mere seconds rather than needing to review each individual email. The fewer emails reviewed, the less time and cost invested in the process.

Email threading can thus reduce the time required for review of emails by as much as 60 percent.

A Threading Example

Let’s break down the threading concept with a simple example. If Mr. ABC sends an email to 10 people, generating 11 emails (10 sent and 1 in his sent folder), and all 10 respond and copy the others, that is 110 emails that are nearly identical. Using identifiers associated with Mr. ABC’s emails, threading software can quickly identify and group together these 110 separate email conversations. Threading may also reveal additional email addresses for custodians. If all of a sudden, an email thread indicates that an additional email address has been copied to a chain, it could indicate a new custodian about which the lawyer was not previously aware.

This could alert the lawyer to a custodian’s personal email account that had been used for business but was not included in the collection emails and may indicate the need to broaden the collection.

Threading can be as hands on as the law firm prefers. The e-Discovery provider may gather all the truckloads of emails and store them in its data centers or in the cloud and conduct the threading. As an alternative, the law firm or corporate legal department can perform the actual threading process themselves using the provider’s software.

Custodians are the Starting Point

During pre-trial discussions, both parties typically agree as to the individuals whose emails should be collected for potential review. In e-Discovery terms, they are known as “custodians.” Some custodians will have several business and personal email accounts that they access through their computers, digital pad devices or their business and personal cell phones. Some of the folks receiving Mr. ABC’s email on their computer may have responded through their business or personal cell phones.

Companies involved in the litigation can normally provide a list of business email accounts for their employees. Those individuals as well as custodians who aren’t employees may also be asked to provide a list of all their email accounts including personal accounts.

In our example, the goal at this early stage is to compile a list of Mr. ABC’s email accounts and those of each of the other 10 people. They hold the raw data being sought. At this point in the process, there is no indication of exactly how many emails are associated with each account, though to narrow the scope, the lawyers may designate specific dates in which they are interested.
When considering email collections, the devices that individuals use are not as important as the location of the servers that host their accounts. Likewise It does not depend on where someone works but rather where the email servers are located.

The Role of International Privacy Laws

These laws dictate how and where locally stored emails can be collected and where they can be reviewed. At this point, relying on the privacy law expertise of lawyers and the technical abilities of an international e-Discovery service provider is essential for a successful email review. The lawyers will guide the legal aspect of the process. A provider will never offer legal advice but can guide the task of collecting and securely storing from the servers in question. In many cases these providers may be able to satisfy compliance requirements by retrieving and storing emails in their own secure international data centers within the necessary jurisdiction.

However, as more and more providers move to storing data in the cloud, it is important that legal counsel understand where exactly their data will be stored and the security levels of that location. The presence of a provider’s international facilities may also be advantageous when time is critical, as this means that the provider is able to host data in multiple jurisdictions, giving more options to a law firm or legal department that has cases around the world.
When the litigation is over, the parties involved have multiple options available for the storage or handling of the truckloads of emails gathered through the e-Discovery process. Remember these are copies; the originals remain on the servers where they were first located. For a fee, they can continue to be stored with the e-Discovery provider, they can be returned to the lawyers and their clients, or they can be destroyed.
With an expected 7.2 billion email accounts by 2019, there is little doubt that the number of emails tied to litigation will continue to increase. This creates an ongoing need to apply technology to the examination process. By email threading, lawyers can gain efficiencies throughout their review and save time and money as well as identify key information sooner in the process. This can give them a competitive advantage and may ultimately help them win more cases while saving their end client money.

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