Every day it seems there are countless articles on how corporations can best reduce e-discovery costs through the use of vendors and new technology. Both, when properly utilized, play an important role in lowering litigation costs. But what about the deluge of press releases, blogs, articles, tweets, and webinars that fill our inboxes everyday promoting sophisticated methods to reduce e-discovery costs? Do these assertions take into account the larger picture of the litigation, or just isolated components of the case? Do claims, for example, of fixed cost document review pricing include time spent by in-house or outside counsel making final relevance or privilege calls? Or preparing privilege logs? Do claims of reduced costs by specialized document review vendors make allowance for time spent by outside counsel associates managing the review and performing quality control?
Electronic discovery requires a comprehensive and integrated approach, not just discrete technological solutions for individual parts of cases. While it is impossible to provide a one size fits all e-discovery plan, we believe there are three guiding principles that clients should implement in order to improve their e-discovery work product and to manage costs.
(1) Think ahead: implement a strong data and document retention plan.
Technology is a wonderful thing, but between servers, email, shared drives, desktops, laptops, PDAs, and old fashioned paper, some corporations have accumulated terabytes of data. Clients should determine their document retention policies based on a proper analysis of their business needs and legal and regulatory requirements. The lure of cheap storage media and the simplicity of a “save everything” approach may sound appealing and reassuring to some, but clients should realize that all of these documents and emails are now potentially in play during discovery. So the decision to retain excess data may later open the door to a mountain of potentially discoverable material which could result in expensive collection, processing, review, and production costs. By narrowly tailoring your data retention plan to balance your business requirements with your regulatory and legal obligations, you can easily avoid such a possibility.
(2) Zero in: narrow the scope of data through effective legal advocacy.
What do you do when your company is named in a complex civil litigation and served with numerous document requests? Driven by fear of non-compliance or sanctions from the court, some clients may feel compelled to start immediately pulling data and sending it for processing. Before beginning costly document pulls, however, counsel should aggressively advocate narrowing the scope of discoverable data. Counsel should conduct an early case assessment with its client’s IT department to understand how the data is stored and how costly it will be to extract. Counsel should also examine the merits of the case and look for ways to reduce the scope of e-discovery material wherever possible. Many jurisdictions, like federal District Courts, require the parties to meet and confer regarding the scope of discovery. Although strong advocacy is needed by all sides in every case, when it comes to pre-discovery conferences, courts have favored and encouraged cooperation. Parties should be able to find mutually amenable solutions at this stage. For example, the parties may agree to preserve data for a large number of custodians, but only collect and process a smaller subset of custodians. After a more thorough analysis of the issues in dispute, the parties may agree to proceed with the review and production of an even smaller subset of data. Additionally, the parties may agree to sampling only a percentage of custodial data before incurring the costs of collecting and processing the entirety of those particular custodians’ data. While e-discovery blogs most often discuss technological challenges and products, we should remember that effective advocacy, such as learning your client’s IT infrastructure and promoting cooperation through pre-discovery conferences, may play a more critical role in managing the e-discovery process.
(3) Tailor the review: select the right technology and people for the project.
While a strong document retention plan and effective legal advocacy will help limit the quantity of data, the structure of a project’s team has the greatest impact on the quality of a document review. The first step in tailoring your resources to the project is to select the appropriate technology for the case – reliable, secure hosting and a review platform suited to the objectives of the review. If you do not take the time to find the review platform that best aligns with the needs of the review, you run the risk of providing your reviewers with software that can’t efficiently manipulate the relevant data – adding significant time, cost and frustration to the discovery process.
Your team should consist of experienced and knowledgeable contract attorneys, preferably those who have worked with your project’s review platform before. If collections include complex financial documents or documents in a foreign language, ensure that your team has the requisite background to make determinations on their content.
Lastly, you’ll need a practicing attorney project manager to train and supervise your team. Serving as a chief liaison between the client, trial counsel, review team, and support vendors, the attorney manager ensures discovery is well-integrated in the case as a whole. By providing your reviewers with a dedicated and licensed first point of contact for substantive questions, you can prevent costly redundancies (or worse, errors), that go hand-in-hand with poorly run document reviews.