This article, originally published in The Daily Record, was updated on October 30, 2015.
There is no question that electronic discovery can be expensive, but is there a way to make it less so? By now most of us are familiar with the results of the Rand Corporation’s study which indicated that over 70 percent of discovery costs can be attributed to review.
Review is big business — if you doubt it, just look at the number of electronic discovery service providers (non-law firms) that now offer managed review. In addition to preservation, processing and hosting, these service providers now provide the lawyers for the document review.
However, take a closer look at the business model: Essentially, the more data they push through the data pipeline to their managed review team, the more money they make. Does that create a conflict? What incentive does the service provider have to reduce data if, in the end, it is only taking money out of its own pocket? Do law firms offering soup-to-nuts electronic discovery services have the same internal dissonance?
How can one protect one’s client or corporation from data overload? How does one reduce the downstream volume in an effort to control costs? Is the answer to rely solely on the service provider or the law firm?
Here are 5 tips for possible cost control.
1. Begin with the end in mind
I recently sat down with an attorney to discuss a case we have been working on together for the past 4 years. She lamented they were still frantically searching and reviewing documents. I was surprised because productions to the opposing party had been completed over two years ago. She replied that the team was now searching for documents necessary to tell their own story, to be used at trial.
Her follow up comment was that if she could “turn back time,” an emphasis would have been placed on identifying useful documents while they were producing data to the opposition, instead of broadly collecting and producing.
Counsel should take a step back and look at the bigger picture before beginning the collection process. Sadly, like Cher, she could not “turn back time.”
2. Interview and target
Interview likely key custodians and clearly explain the litigation and issues at hand. These folks will arguably be the best resources for identifying and producing responsive material. Don’t rely solely on your interview template to uncover all sources of ESI. Document the interview and dig for detailed answers.
If the interviewee states that he or she stores data on the network, ask for specifics. Where on the network? What share drive? What drive letter? This applies to both on premise and cloud-based applications, such as social media, emails, databases and any source of electronically stored information; get as many details as possible. If the document custodian points to a folder in her email account, ask a technical resource if it is possible to just collect that folder as opposed to the entire mailbox.
In my experience, interviews are best done in person. However, if this is not possible then utilize technology. I have conducted many interviews with multiple parties in disparate locations using Web-meeting technology. Don’t rely solely on email interviews. Nothing beats face-to-face, even if it is over the Internet!
3. Preserve it all then cull it!
Preservation ≠ Production. Preserving in place with only one copy can be risky! Litigants have been sanctioned for “losing” data or being the victim of a “crashed” hard drive. Even if one preserves it all, one can still target. Put some eyeballs on that data! I have conducted dozens of Web-meeting sessions with clients and their legal counsel who were able to reduce significant quantities of data that would otherwise have been reviewed simply by eliminating entire folders of files based on their name, content and other factors.
- Remove system files and de-duplicate by using near duplicate and email threading technology. Unless required or case specific, don’t consider deleted data.
- Use keywords! While keywords are not the most effective method for identifying responsive documents, they can be an indispensable and useful part of the process when used effectively. Do not, I repeat, do not agree to search terms before conducting keyword analysis. Keyword analysis does not have to be an esoteric or mystical process. Pick a decent sample of documents and start testing the terms. It’s also a good idea to test keywords more than once to make sure that the recall results are what you have anticipated.
My disclaimer here is that if one is at this juncture it would be wise to get some outside assistance. Legal teams should work closely with those who know the data best to come up with sets of terms. What is the internal corporate lexicon, acronyms or slang? Only the company employees know. That is why it is risky to attempt to pick terms for your opponent to use. You don’t know what you don’t know!Be careful about searching for data on applications such as Outlook; all the data may not be searched.
- Advanced analytics, near-duplication, predictive coding: if you have heard about these ESI -reducing technologies you may think they are only for the big guys and the big cases. Think again: you can successfully employ many analytic technologies on smaller cases and realize a benefit and cost savings.Here are five analytics workflows designed specifically for small cases and datasets.
4. Involve IT
In addition to giving you advice on which laptop to buy your kids for Christmas, IT can save the organization time and money by creating a data map. A data map will provide a high level overview of the IT systems in place at the organization. There may be non-custodial based data sources that only IT can help identify. Through discussions with IT personnel it may come to light that the organization maintains a document management system, which has a built-in eDiscovery management console. Ask a lot of questions of the IT guys and gals. Learn the systems. If you don’t know what questions to ask, then find someone that speaks geek.
The old maxim holds true here — failing to plan is planning to fail! If you have one week to spend on discovery, a full day should be spent planning. Who is the project lead? Who is on the discovery team? Who is the IT liaison? How will the data be reviewed? What is the production format? These questions and dozens of others need to be asked and answered before any work is started.
A corollary to planning is multi-tasking: How about a rolling production? Or, while a settlement or motion practice is ongoing, you have data being processed and readied for production. In the absence of doing nothing, let’s do something. Large scale discovery matters are not for the weak. A solid team should be built up front with sufficient project management resources.