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By Scott Oliver
Legal Tech Newsletter
October 23, 2006

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.

The notoriously inefficient and tedious job of manual e-mail review typically requires teams of qualified and highly compensated legal practitioners spending days and nights poring through messages, an overwhelming and nearly unmanageable task given the volume of e-mail that must be analyzed within a specific time period.

The pervasive and persistent entry of e-mail evidence in our cases put a constant strain on resources. For a moderate-sized investigation, a team of four to five associates -- each earning approximately $300 per hour -- would spend several 12-hour days reviewing and analyzing boxes upon boxes of printed out e-mail messages and attachments; painstakingly separating them into organized stacks.

Our staff was constantly bogged down with this process; always working up against tight court-appointed deadlines. It was a stressful situation for our firm and for our clients not only because of the sheer volume of information we had to sift through, but also the uncertainty of what the evidence would ultimately tell us.

It became obvious that until the process could be automated, e-mail review and analysis would always remain inefficient and subjective. Multiple legal professionals would often review the same e-mail found in differentcustodians' PST files, resulting in duplicative efforts and redundant costs. Furthermore, it was impossible to perform the very critical task of linking relevant e-mails together into a discussion thread and building a chart of who knew what, and when.

It was also impossible to enforce a standard set of criteria against an individual's decision making. For example, an associate with a broad reading of the case might classify an e-mail message as responsive, while another associate with a narrower interpretation might consider it non-responsive -- thus eliminating a potentially relevant message from the collection of evidence.

In a desperate attempt to lower costs, some practitioners resort to alternate methods of e-mail review and analysis, such as offshore or outsourced labor, that have proven equally costly and subjective.

Because e-mail review is such a critical part of many of our clients' cases, we are hesitant to delegate the task to anyone outside our office. However, given the time-and-cost considerations for our clients, we felt a real sense of urgency to find a permanent and reliable solution to the problem.

After researching the market for technology solutions that could meet the firm's specific needs, we discovered the Clearwell E-mail Intelligence Platform. Upon evaluating the product's capabilities, we had the opportunity to accelerate the purchase with a new case involving more than 60 gigabytes of e-mail.

We outlined the cost savings and efficiencies the technology would provide in the client's case, and they agreed to subsidize the purchase of the Clearwell tool. Had we not implemented Clearwell on that case, we would still be reviewing all of the e-mail evidence for this particular client.

Since installing Clearwell, the intelligent analysis capabilities have delivered tremendous value to our firm and associates.

Clearwell automatically eliminates duplicate messages and attachments, reducing the number of e-mails to be analyzed by 25 percent to 40 percent. In one instance, Clearwell cut the number of messages from 150,000 to 105,000 e-mails simply by eliminating duplicates.

Another extremely valuable feature is Clearwell's ability to link relevant messages together into discussion threads. This allows us to easily follow an e-mail thread, as discussed earlier -- something we were unable to do, and pinpoint exactly who was involved in a particular discussion, what they knew and when.

The ability to classify entire e-mail threads into relevant piles further speeds the e-mail review and analysis process, resulting in further cost savings for our clients.

Clearwell's sophisticated search capabilities have automated the process of identifying privileged and "hot docs," ensuring that all the relevant e-mails and attachments have been identified and ensuring that key evidence is not missing.

These capabilities go beyond a sender's name or particular keyword to ensure that all legal professionals are consistently applying the same filters, further eliminating redundancy.

Finally, Clearwell's tagging and export features make it seamless to import the relevant documents in a litigation support tool for production to opposing counsel, making the production process easier and cost-effective.

Using Clearwell, we have cut time spent on e-mail review and analysis dramatically and lowered costs by 82 percent. This is the most powerful and comprehensive method for e-mail analysis that we've seen.

The entire process of reviewing e-mails manually was fraught with problems and gave the firm little time for higher value work. Given the time required for sifting through thousands of e-mail messages and attachments, we were also limited in our ability to take on new clients.

With Clearwell, we have increased the number of cases we are able to handle and redirected associates to other, higher value tasks for our clients with the time we have saved in e-mail review.

Other benefits include faster, more informed and accurate early case assessments, significantly reduced time spent on e-mail review and analysis and lower e-discovery costs.

Clearwell has strengthened Pooley & Oliver's reputation as a tech-savvy firm and a pioneer in the use of automated e-mail review and analysis. We're convinced that Pooley & Oliver is years ahead of our peers by offering this kind of advanced e-mail analysis solution.

Clearwell gives us a solid competitive edge over other firms and a level of service our clients simply can't get anywhere else.

Scott Oliver is a partner at Pooley & Oliver LLP and has specialized in intellectual property litigation for more than a dozen years. He is a litigator and trial attorney of patent, copyright and complex technology-related cases and an expert on the Digital Millennium Copyright Act (DMCA). Oliver regularly appears before numerous federal district courts.