“If documents are clustered into large groups of files that are talking about the same things, then you can make decisions on whether those documents are potentially relevant or not relevant much more quickly,” says Brian Reny, national director of electronic discovery with KPMG’s Forensic practice. “We literally get involved in cases that have millions of documents.”

Using manual methods, a lawyer can review anywhere from 40 to 75 documents per hour, he said. By using a tool, such as data clustering, they can increase the rate of review to between 800 and 1,000 documents per hour.

But these tools can be costly. If a case involves a single incident or a small number of people, relying on hard documents may suffice. But if the case takes place over a long period of time, where there’s a vast number of documents or a large group of employees, it makes sense to search through electronic records.

For a company faced with litigation on a daily basis, this may be something they want to invest in (most, however, haven’t, including large pharmaceutical companies that regularly deal with lawsuits). Others may choose to work with a third-party provider.

Some companies are rarely, if ever, sued and don’t want to make a large investment in data-mining tools, so it’s a question of what the courts will find reasonable, says Info-Tech’s Armstrong.

“The judges and prosecutors are recognizing not only the importance of electronic messaging for civil procedures, but also that there are going to be some limitations, particularly for smaller organizations that have fewer resources to throw at this problem.”

Some may already have a document management system in place, which provides a foundation for data mining. Corporate counsel should ask their IT department if the company is using some type of document management system, such as Hummingbird or iManage, which allows users to save documents that can later be retrieved in an efficient manner, says Commonwealth Legal’s Felsky.

The problem, however, is that some employees might continue to save documents on their hard drive. “Some companies will have document-management systems,” says Felsky. “But it’s important for corporate counsel to understand those were put in for business purposes, not for litigation purposes.”

If the company doesn’t have a system like this in place, corporate counsel can ask the IT department if they’re capable of installing a program and running an indexing process that will allow them to do this kind of search.

There are a number of these tools on the market, says Felsky. For small to mid-sized organizations, a tool called dtSearch works on desktops or company servers to index all documents and e-mail. Google offers an enterprise search appliance that culls through data on web servers, file servers, content management systems, relational databases, and business applications through its search box.

Once corporate counsel find relevant documents, they must be able to produce the originals in court. “We freeze the evidence in the form of an image so the documents that are relevant are produced as an image file rather than a Word document or PowerPoint or Excel spreadsheet,” says Felsky.

The last thing you want to do is lose that data once you’ve identified it, says Peter Vakof, a partner with PricewaterhouseCoopers’ forensic technology solutions. If you don’t isolate a backup tape, for example, and that tape is due for rotation by the IT department, the data could be overwritten.

Still, it’s important not to rely solely on technology, says Vakof. Test the tool and make sure it’s searching properly, and ensure that you use a range of possible search terms. If you rely blindly on the software and it doesn’t find anything, yet the other side tested it and found a flaw or used a different software program that caught something, you’re in trouble. “Use the technology to facilitate the review and find the issues,” he says.

“But, nonetheless, the key responsibility still lies with the reviewer.”