http://ow.ly/7DDKJ
An article by Daryl Shetterly and Howard Reissner appearing on the insidecounsel.com website.
This article focuses on methods to possibly reduce eDiscovery costs, as well as the Federal Rules of Civil Procedure, and how to comply with those rules while still limiting the expense involved.
The authors state, "In the absence of further guidance from the courts or the Federal Rules, what can an attorney do to reduce both cost and the likelihood of a negative outcome?
There is an aspect of e-discovery expense that in-house and outside counsel are well positioned to influence: Take a closer look at the people, process and technology you use to comply with your e-discovery obligations. There is a big cost difference between an e-discovery project that is properly planned and managed and an e-discovery project that is ad hoc and reactionary.
Many lawyers err on the side of preserving, collecting and reviewing too much information because they are concerned with the small (but potentially very bad for practice building) possibility of missing a few relevant, or worse, privileged documents.
Many lawyers also depend on people who are not well-versed in e-discovery law and technology. They use processes that are not adequate to ensure quality, while minimizing cost and using technology that has fallen behind the evolutionary curve."
The article offers some sound advice, including stating, "Remember that there is no such thing as “e-discovery in a box.” Processes and technology that were only recently best practices are consistently replaced with even better processes that are more defensible and do a better job of integrating technology. Technology continues to evolve and develop in ways that will impact both the types of e-discovery problems we face and the types of solutions we deploy to solve those problems. Software tools adequate a few years ago are now outdated as new tools and data storage become increasingly complex.
As the challenges and complexity of discovery evolve, it is not enough to rely on vendors, software or processes that may have been sufficient several years ago, but are not up to the task of today’s larger and more complex universe of data.
Also, be sure you have the right people managing your technology and process at both the law firm and vendor level. Consider bringing in separate e-discovery counsel to handle the e-discovery aspects of a matter."
I think it comes down to a simple thing..know your data before it envelopes you. Often no one really knows what is at stake or what they need, so the idea of over collection becomes the only viable way to make sure you have what you need or risk going back in. Information Governance and advising clients on its application as a preventative or incident application is becoming more of a necessity. If you have some sense where the data is first, you can make some intelligent choices about how to handle it. If you don't know even what the IT Policy is, then what choice do you have but a "scorched earth" collection. It does not always take a tool or service to figure out where data is. It can be as simple as asking probing questions then going in with simple approaches to confirm what is there. Once you know, the collection strategy can be tailored, data can be reduced further with pre processing tools and deadlines met at a reasonable cost. and by reasonable I mean 4, 5 and 6 digit figures as opposed to high 6 and 7 digit figures.
ReplyDeleteI agree with Richard. Most companies have a retention policy of storing everything "just in case". This is ridiculous and leads to outrageous costs when it comes time to collect and review the data. It is necessary and cost efficient to perform data mapping and custodial interviews before starting to collect. If you use an outside provider for the collection I'd recommend a remote collection instead of sending someone on-site. Just as defensible in court and saves a fortune.
ReplyDeleteOnce you have your data there are many EDA workflow you can implement to drastically reduce your costs up front. My company Advanced Discovery was one of the first to create an EDA workflow module within Relativity and we also co-designed the new Predictive Coding feature kCura released in August.
My grandfather was a contractor and he always said "measure twice, cut once". Pretty much make sure you go into it with the best plan of action before you start.
Remember that 75% of litigation costs are in attorney review so it only makes sense to intelligently attack the data up front to lower those costs on the back end.