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Intelligent Document TriageSM

A Process for Categorizing and Prioritizing Documents

In order to meet client demands to save money and time in the discovery phase of litigation, ACT has developed a new process of categorizing and prioritizing large document populations. The concept is called “ACT Intelligent Document Triage”. Triage comes from the French “trier”, meaning “to sort”. Triage has an appropriate history for litigation purposes coming from battlefield settings, where wounded soldiers were sorted as to priority for their treatment. The wounded soldiers were then “tagged” in the preferred order of treatment. This process of triage was begun under Napoleon and became a best practice during World War I and is used today in emergency rooms, on the battlefield and in disaster relief situations all over the world.

Simply said we have applied the triage approach to litigation where large document populations are present. The complexity, chaos, urgency and drama unfolding in emergency medical situations are easily analogous to complex litigation where a method to bring order and produce useful documents is needed in stressful situations. We sort and tag documents in a useful way to reduce cost, speed up the process, improve results and bring order in the discovery phase of litigation.

There is a long standing trend for corporations to follow the best practices of companies, such as GE and DuPont, who are insisting that legal costs be managed like any other cost in the business. For over a hundred years GE and DuPont have been incubators for innovation of best practices in American business. A number of important innovations such as return on investment, research and development, safety and now a new legal economic model has emerged from these corporate role models. Many major corporations have taken the road they have traveled and more will follow in an attempt control their legal costs. While litigation matters can assume life and death proportions, more and more sophisticated corporate users will not sustain the dramatic cost consequences which can occur without good process and metrics.

A significant difference between emergency medicine and the law is that 200 years of process improvement and best practices to achieve high functioning team work has been at work in improving the medical model. Process improvement in litigation has been for the most part static until recently. The legal model, while having made a rich and critical contribution to our country, has been struggling to deal with the impact of the explosion of electronic document discovery and the resulting consequences. The purpose of Intelligent Document Triage is to address the chaos caused by a logarithmic increase in electronic documents.

ACT’s continuous improvement process to lower cost and improve results is robust and Intelligent Document Triage is an evolutionary step in those efforts. The use of Intelligent Document Triage can result in the savings of millions of dollars in complex discovery matters.

Our historical data shows actual benchmarked savings on a 50% order of magnitude. As a service to our clients, ACT will benchmark a client’s actual historical cost against our model at no cost.

Part of ACT’s on-going study of the document discovery process has been an analysis of “all in cost”. There is a tendency for people to carefully examine the “per item” cost and ignore the “all in cost”. All-in cost includes all costs of document discovery, including attorney document review. ACT’s studies of detailed billing statements have shown that 75% to 90% of the all-in cost comes from attorney document review. ACT’s applications have proven to be helpful in significantly reducing the overall cost of discovery including review. The acquisition cost by a law firm or corporation of ACT’s services is not the cost that matters. The results of the “all in cost” of the total process are what is important, not the “per item cost”. A cheap “per item cost” may result in a greatly escalated “all in cost ”.

ACT is open to alternative fee arrangements with clients. We do not charge for consulting or project management, which are two of our most important contributions to value. Our fees to clients are based on results and client satisfaction.

An emergency room physician’s first duty is assessment and to do no harm. The history, symptoms and underlying cause of the patient’s problem must be determined by asking questions and through good analysis. The needs, relief and outcome of the patient are critically dependent on a good and proper assessment of the situation. The same is true in the discovery phase of litigation. The collection strategy and case needs must be properly assessed. Money will not answer the need for good assessment. Much unintended harm and damage can result from poor application and analysis. Intelligent Triage is a preventive step to insure a low cost, high quality discovery process.

ACT’s best practices approach is to understand the issues and priorities of a case, and to then design a process workflow to best meet those needs. A typical ACT comprehensive workflow starts with the collection strategy and process, depicts the steps in data processing and document review and ends with automated document production. While each case is at least somewhat unique, there is a guiding philosophy that ACT follows on every case for cost management: Intelligent TriageSM. The two core elements of Intelligent TriageSM are:

  1. Reduce the number of documents reviewed by attorneys; and
  2. Create efficiencies for those documents that require review.

Reduce the Number of Documents Reviewed by Attorneys

Document reduction prior to attorney review is achieved through a combination of processes and supportive technologies that allow the legal team to reliably and defensibly cull non-responsive documents/data from a collection. Below is a graphic that lists some of ACT’s processes:

ACT’s Processes

ACT Multi-Tier ReviewSM—Tier 1

One of the featured steps above is Tier 1 Review. In the spring of 2002, ACT was asked by one of its law firm clients to look for additional creative means to reduce document processing and review costs for a large electronic discovery collection. Through our discussions, it was determined that if the attorneys could review an index of the documents, whole folders/directories might be eliminated from further processing and review. ACT made the pre-processed documents/data available to the attorney on copies of the hard drives. Two of the law firm’s attorneys traveled to ACT’s offices, spent a few days reviewing those hard drives and eliminated only those documents and data that were obviously irrelevant. The end analysis showed a reduction in data of approximately 80%, resulting in a savings of over $1 million in ACT’s processing fees alone.

From this experience, ACT began a development effort to make the process more user-friendly and provide greater safeguards for data integrity. The resulting solution, Tier 1, begins with a cataloging process that inventories every file on a media (hard drive, DVD, CD-ROM, etc.). From this point, ACT can provide complete audit trails as to the status and whereabouts of every file, from review through production.

The Tier 1 application directly reads the catalogued database. Users are presented with a Windows Explorer-like interface to review the index of documents. Users can browse folders at the highest levels and, at their discretion, delve deeper into subfolders and even view individual documents. Based upon broad-based decisions, users can select for further processing entire folders, subfolders or individual documents.

Create Efficiencies for those Documents that Require Review

After Tier 1 review is completed, ACT takes the resulting database and creates a subset of the selected data. That subset is then processed according to the processing and review workflows designed for the case. At any point in time, the data that was not originally included can be re-reviewed and additional folders/documents can be incrementally supplemented into the workflow for review and production.

The second part of attorney document review savings is to create efficiencies for those documents that require review. In ACT’s studies of document review, we have found that reviewing documents the traditional way, by custodian, can be very inefficient. Documents organized by custodians take on certain randomness from the reviewer’s perspective. ACT has found that if it can organize subset populations of documents by content, then review speeds can increase from hundreds of pages per hour to thousands. An intellectual property litigation ACT is currently working on has achieved a review speed of 2 million pages per week by 20 reviewers of no-email user files.

ACT refers to the process of content organizing as BucketizingSM. The chief idea behind BucketizingSM is to understand as much as possible about the collections and document requests to be able to sort the documents into like piles prior to review. In doing so, ACT effectively creates review specialists. Review specialists concentrate on one subset of documents. As review specialist s become familiar with the documents, they are able to make review decisions to decrease the time. In some cases, subsets of very similar documents can be reviewed by batch or sampling, creating effective review rates of thousands of pages per hour.

Below is a graphic that ACT uses in project start-up meetings to promote the specifications dialogue:

Specifications Dialogue

ACT Multi-Tier ReviewSM—Tier 2

When ACT first started handling electronic discovery data in the 1990s, the object was to find a more efficient way to print the documents rather than have a computer operator manually printing. Today the object is to find the most efficient form of the data for document review. Very often, the most efficient data form is a native view to the original file. ACT refers to the review of native files as Tier 2.

Tier 2 features the extraction of metadata and text from each file into a database record, a control number assigned for audit control and preservation of work product purposes and the delivery of the database linked to the native files in the review tool of the client’s choice. Tier 2 review can potentially be less expensive for ACT to process and easier for the client to review.

ACT Multi-Tier ReviewSM—Tier 3

Depending on the time available for the review and/or the anticipated responsive rates, ACT may recommend the documents be reviewed in TIFF image format. ACT refers to a review of TIFF images as Tier 3. Tier 3 may be used for an entire review or just for final privilege review and production quality control. ACT’s studies have found that the attorney document review is the slowest step in the collection, automation, review and production process. As such, where time pressures for production are extreme, it can be more efficient to TIFF everything prior to review. In doing so, documents are ready for production immediately upon completion of review. If the anticipated responsive rates for the collected documents, or subsets of documents, are very high, then it can be less expensive to TIFF the documents prior to review rather than touching them once for a native file review and then again to convert them to TIFF images for production.

What follows is a high level overview on ACT’s electronic discovery process. ACT will do an assessment of a clients discovery needs and the “all in cost” factors as a proof of concept with historical benchmarking and metrics.