Many of us in litigation and litigation support have spent years if not careers managing eDiscovery costs and risks. The volume of ESI has grown at a staggering rate and so has the pace of litigation. The industry has responded in kind. Some gains have come from the use of increasingly sophisticated technology. Others come from new staffing models for attorney review. Each requires attention in supervision, project management, metrics, and quality control.
Since review is the most expensive part of the discovery process, it is imperative to do everything possible to manage the size and cost of attorney review. The stakes are highest when it comes to the overall cost of litigation and to whether a party can afford to litigate or negotiate on the merits.
How to Manage the Size and Cost of Attorney Review
Going back to “review all” “in-house” will only drive up costs and make good firms less productive, less attractive, and less competitive.
A sane approach is that if you have a good program, stick to it. It will save money and help get your job done better and faster. Think carefully not just about the technology, but about the workflow, supervision, quality control, training and documentation. Don’t pander to the fear.
1. Reduce Your eDiscovery Data Set Prior to Review
To put it simply, smaller data sets take less time to review. Therefore, by reducing the quantity of data before it gets to the review stage, attorney review costs will ultimately be lower. Here are a few steps to cut down on data sets:
- Focus on the End Goal: Instead of broadly collecting and producing data, place emphasis on identifying useful documents to keep only relevant information.
- Interview and Target: Interview likely key custodians and clearly explain the litigation and issues at hand. Custodians could potentially be the best resources for identifying and producing responsive material.
- Preserving it to Prevent Loss of Data: Preserving data in a place with only one copy can get risky. If you preserve data correctly it can prevent litigation sanctions and can serve as a backup if anything happens to the original data.
- Involve IT: IT can save the organization money by creating a data map.
- Planning: Failing to plan is planning to fail! At least one full day should be dedicated to planning the discovery process.
2. Manage Your Records with a Retention Policy
In the absence of a litigation hold, make sure you are getting rid of data you don’t need. That includes data from desktops, laptops, servers, mobile devices, and especially backup tapes. A records retention policy is especially useful when dealing with email and other electronic communications. Document management can be an overwhelming process, to prevent frustration, take it one step at a time.
3. Implement a Litigation Response Plan
There is a return on investment here. Document roles, procedures and workflow. If you quantify early what’s “in”, what’s “out” and why, you have the metrics to negotiate a defensible, cost-effective, favorable and “proportionate” scope of discovery.
4. Experienced and Dedicated Project Management is Crucial at Every Stage
“Dedicated” means not to dilute or distract from workflow, supervision and quality control. The best combination is a good project manager in the firm, who coordinates with the vendor and in-house counsel, and is supervised by experienced counsel who has both the assignment and the time to supervise. Legal teams who utilize project management best practices have a strong foundation for a streamlined eDiscovery workflow.
5. Understand Your Technology
You can use advanced search algorithms, conceptual-based search tools, predictive coding, or just plain old processing and search terms. You don’t need to be a linguist or a mathematician, but make sure you understand how they work for you. Can you explain how you are selecting what you choose to review and defend what you choose not to review?
6. Document and Utilize Quality Control Measures
If your quality control typically means, “first you review it, then I’ll review it”, you are missing some fundamentals. You need testing and metrics. How good are your search terms? How good is your first-pass review? Do you have metrics and testing to trap for errors? Are your QC procedures documented and approved by supervising attorneys? Are they routinely enforced and not compromised by a crashed schedule? Using a simplified document review coding layout can facilitate a more precise QC cycle and minimize production errors.
7. Dedicate Time to Training and Supervision
You can’t dip into a review for a day and expect it to run on autopilot, nor can you assume a client who insists on self-collecting will collect the right data, and do so in a defensible manner. No one person can supervise all aspects of a complex eDiscovery project, but it is outside counsel’s responsibility to know intimately what is going on with the review and supervise the collection process. If the senior attorney is preoccupied with strategy, tactics, clients and opposing counsel, then another senior attorney should assume the role.
Don’t pander to the fear. Use the right technology and staffing models to build your programs and stick to them. Document the procedures, the workflow, and the quality control measures and stick to them. The outcome is proportionate, defensible, and cost-effective discovery.