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Getting Smart About Analyzing Electronically Stored Information

By Eric Rosenberg
Not long ago, the pain of analyzing electronically stored information (ESI) for legal e-discovery, regulatory inquiries, and corporate investigations was hardly a blip on the radar screen. The requests were far and few between and, significantly more time was spent chasing down memos tucked away in filing cabinets than worrying about a handful of innocuous electronic documents. e-Discovery was in its infancy, and the costly and labor intensive process of sifting through and analyzing documents simply wasn't worth re-thinking given the low volume of cases and data that needed to be reviewed.

Fast forward to 2007, where e-discovery and its concomitant analysis has become a major component of any discovery request. According to an online article from Law.com, more than 90% of new business records are created electronically, and 40% of them are never converted to paper. In fact, in its End-User Survey & Market Forecast 2006-2010, research firm Enterprise Strategy Group (ESG) found that 42% of respondents state that their organization has been involved in a legal proceeding or regulatory inquiry that necessitated the search for and retrieval of electronic records. e-Mail, in particular, has become a key issue as it's used in nearly every business transaction: negotiating contract terms, settling disputes, acknowledging agreements and finalizing documents.

Further, the problem is only getting worse. Consider the newly amended Federal Rules of Civil Procedure (FRCP), which went into effect last December. Rules 16 and 26 were amended to provide the court with early notice of e-discovery issues. A clear implication of this rule change is that the number of cases and the amount of data subject to analysis and review has increased significantly. According to a 2006 survey by international law firm Fullbright and Jaworski, large U.S. companies are already concurrently managing 556 cases on average, with an average of 50 new disputes emerging each year.

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