It is no mystery that eDiscovery can be expensive. From preservation and collection to processing, hosting, and review, litigants and lawyers have struggled for years with how to address this often unpredictable cost center. Those struggles may very well persist given the continuing growth of electronic data that could be subject to discovery. Clients should not expect relief from the courts on this front either as the law generally proscribes recovery of most eDiscovery-related costs and services.
Given the reality that litigants will nearly always bear their own eDiscovery expenses, it is worth exploring how they can develop a more cost effective approach for managing those expenses.
An essential first step in this process is to reduce the over-preservation of documents. Parties should preserve the relevant data that must be kept and produced in litigation – and nothing else. While doing so is easier said than done, parties can reduce the over-preservation of documents by working cooperatively with opposing counsel. If adversaries can reach an agreement on the custodians whose data must be retained and those who can be taken off legal hold, a party can substantially reduce downstream costs for processing, hosting, searching, and reviewing data. Parties can also seek relief from the court on these preservation issues if opposing counsel is uncooperative.
Targeted Collection of Relevant Data
Another critical step to enabling cost effective eDiscovery is to primarily target the collection of relevant files from custodians. Far too often, lawyers and vendors over-collect data from party custodians and rely on search tools to identify and remove nonresponsive information. This results – much like it does with over-preservation – in higher costs for processing, hosting, searching, and reviewing client data.
Parties can decrease these costs by first interviewing their custodians to identify the exact location – down to the file folder – of relevant information. While this won’t eliminate all non-relevant information, it should result in a more targeted collection and reduce the amount of data that must be processed, searched, and reviewed. When coupled with a strategy of phasing discovery according to the importance of particular custodians, parties can delay or perhaps eliminate the need to collect certain categories of nominally relevant data.
Using Advanced Search Methodologies
A final step to maximizing cost efficiency in discovery is to use advanced search methodologies to identify responsive information. There are any number of analytics tools – email threading, concept searching, data clustering, and technology-assisted review (TAR), to name a few – that can expedite the search and review process. Moreover, these tools – particularly TAR and concept searching – can help counsel more easily identify the key documents for a particular case. In contrast, parties can overlook those documents if they rely exclusively on search terms and manual review. Moreover, such search methods are frequently more expensive and time consuming. This has been borne out by many cases, most prominently in Progressive Casualty v. Delaney.
Drawing on any one of the above referenced approaches will likely help litigants get a better handle on their eDiscovery costs. Using these strategies in concert will almost certainly facilitate a more cost effective approach to discovery.