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Second, a proactive archiving system can have powerful search tools which allow a company to selectively filter and restore only the electronic data that is likely to be responsive to a discovery request. This reduces the amount of data that needs to be reviewed by attorneys and thus, attorneys’ costs.

Third, some archiving systems can “deduplicate” electronic information. Deduplication is the process of identifying duplicate records and merging them into a single record. For example, a single e-mail can create multiple duplicate records in an archive -- one from the sender and one for each e-mail recipient. With deduplicating technology, only one record of the e-mail is archived. This process dramatically reduces storage and handling costs. It also streamlines production of records by reducing the total amount of documents that attorneys need to review and produce.

Fourth, data archived online is stored in a readily accessible format. As shown in Zubulake, in some jurisdictions, cost-shifting is the exception, not the norm, with regard to inaccessible electronic data. Therefore, the more accessible the data is, the less costly it is to gather, review and produce.

Fifth, a proactive archiving system allows electronic data to be gathered and produced for discovery without disrupting employees or the business. As stated above, counsel for a company often recommends a litigation hold at the onset of a matter. In connection with the litigation hold, key employees are advised not to delete any e-mails that may be relevant in the litigation. Proactive archiving eliminates the need for this aspect of the litigation hold. Since all electronic transmissions are archived instantaneously, employees do not need to refrain from deleting e- mail or adjust their everyday work habits. Not only does this create greater efficiency, it also reduces the possibility of sanctions or an adverse inference instruction due to a claim of spoliation. 20

Above are only some examples of how a company can create a more efficient IT system and network. Companies should reassess their current system and analyze whether keeping certain electronic data beyond a given amount of time serves their business purposes, especially when such data is kept in “inaccessible” form.

b. Internalize Costs of Production and Review

A large company may also reduce costs by internalizing some of the costs of litigation production and review. Corporations routinely incur considerable expense in hiring outside vendors or consultants to collect or restore network data and backup tapes and to image hard drives for pending litigation. Some of these companies have successfully created internal litigation support units staffed by a combination of lawyers and technical consultants who then -- at a fixed internal cost -- perform the time consuming tasks of collecting electronic data and implementing retention policy or litigation holds. Besides eliminating the obvious cost of having to hire a third party, an internal team can create efficiencies and leverage institutional knowledge by being fully dedicated to preserving, indexing and managing the source and contents of backup data. Of course, a company must engage in large scale litigation and electronic discovery on sufficient scale to warrant the creation of such a dedicated infrastructure. In a large case,


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