Making E-Discovery More Affordable

Volume 38 Number 2

By

About the Author

 Bruce A. Olson is founder and president of ONLAW Trial Technologies, LLC, an e-discovery and computer forensics consulting company. He is a past chair of ABA TECHSHOW and is on the faculty for ABA TECHSHOW 2012.

The high cost of e-discovery is an ongoing concern for everyone who deals with discovery of electronically stored information (ESI). It’s particularly troublesome in smaller cases where the amount in controversy is modest. Too often, e-discovery is the tail wagging the dog.

There are, however, things you can do to minimize cost, and there are a number of software tools available that are low cost, yet powerful in what they offer. With a combination of a good strategy to deal with e-discovery and the use of appropriate tools, you can manage to lessen the overall cost of e-discovery. It takes planning and flexibility, but it is possible.

The first thing you can do costs nothing apart from the time spent thinking as a good lawyer. It’s probably the most important thing you can do to minimize costs. Take the time to think through what you really want in terms of discovery of ESI. Make your requests targeted and specific enough to elicit just what you really think you need for your case. Too often, lawyers use the all-encompassing approach of casting the widest net possible. This obviously magnifies the cost of discovery. It may be done as a strategy, but more often it’s done because it’s easier to do. Asking for everything doesn’t require you to think about your case and determine early on what you need to meet your burden of proof. If you carefully tailor your requests, you can limit the amount of work that must be done and lessen the amount of data that needs to be processed and reviewed. If you do this, you also have a good argument to persuade your opposing counsel to do the same (or a judge in the context of a motion for a protective order), thereby lessening your client’s costs in responding to e-discovery requests.

How do you go about performing effective triage at the outset? In federal court you have a great tool: the meet and confer. Many states have similar provisions in their state civil procedure laws. My recommendation is meet early and often. While there may be a mandatory requirement to have at least one meet and confer, you are not limited to one meeting. If you meet early with your opposing counsel you can take steps to define what they have, let them know how they should preserve it, and determine how it should be collected in the most cost-effective way. You can do the same for your client’s ESI so you can minimize your own expense in terms of preservation and production concerns.

Know what you really want. If you aren’t concerned with deleted information, you probably don’t need the help of a computer forensics expert. On the other hand, if you do, that determination should be made quickly and collection efforts should occur as soon as possible to avoid the inadvertent loss of information due to the normal operation of computer systems. If you aren’t really concerned with metadata, you may be able to use less-expensive collection methods that don’t preserve the metadata associated with the ESI you are collecting. You never want to make that decision in the dark, and that is why the issue should be dealt with at a meet and confer.

Still, often you are really only looking for a copy of a file and don’t care about the metadata of the original. If you know what you are doing, and what you are giving up, you can minimize collection costs by stipulation. Even if you do need to preserve metadata, there are relatively inexpensive options available that you can use without the need to hire expensive outside consultants. It may take a higher level of technical ability on your part, and you need to determine if you are comfortable engaging in self-collection methods, but there are lower cost options available. If you are comfortable, then you can negotiate with the other side to use appropriate software tools to collect the ESI that you need to produce and to collect the necessary information from your opponent that you want produced.

One technique that can be considered at a meet and confer is the use of phased discovery. Why demand the ESI from every potential witness in a case when a more targeted approach might better serve your needs? Agree to limit initial collection efforts to the key custodians you want, and agree that if discovery of their ESI proves fruitful you can move on to collection from other more peripheral players. If e-discovery does not produce much of value with the key witnesses, you can safely skip the other witnesses.

Even with key witnesses, consider a phased approach by using sampling techniques. Before you demand production of an individual’s full file shares from a company server, consider whether you should first review just the email files from the email server. If that analysis turns up attachments that are relevant, then you can move on to the file server. Limit the type of information you seek initially. If you aren’t looking for financial data, then don’t demand production of all spreadsheet files. If there is a limited date range at issue, don’t ask for every document on the server, just ask for those that fall within the pertinent date range. If you can limit the scope of what you are looking for by the use of keywords, try filtering on keywords. It may get you what you want right away. If keyword searching is unsuccessful, you can then consider broadening the search or abandoning it altogether.

If you are an attorney who doesn’t have a great deal of experience in electronic discovery, get some help—the earlier the better. Hiring a consultant who can help you develop a streamlined e-discovery plan may cost some money up front, but in terms of avoiding the cost of the attorney spinning his wheels or making mistakes, the overall expense will be less. Hire the right kind of consultant to help you.

Vendor-neutral consultants typically don’t have a vested interest in using one particular product or procedure. A vendor-affiliated consultant always has a biased agenda. The bias may be useful to your case, but be aware of what you’re getting.

In addition to good management of the e-discovery process, there are a number of free or low-cost software tools that can be of help. Not every case demands that you spend a great deal of money on a full-fledged litigation support program in order to work with the electronic evidence. You need to pick the right tool given your particular circumstances, and there are a variety of useful options available.

One free tool that more attorneys should be aware of is FTK Imager from Access Data. It can be downloaded at access www.data.com/support/adownloads.  While this is intended to be a tool used by computer forensic examiners to collect ESI, it can also be used by attorneys as a tool to simply view ESI and then copy only those files that are pertinent for subsequent use. You can load a hard drive or thumb drive full of data or just the contents of a particular folder as an evidence item into the program. The results will display in an explorer tree and you can then navigate to a particular item and highlight it. This will display the document in the built in viewer. If it is something of interest, you can then copy the file for later use.

It’s not uncommon to receive a CD of data containing a mixed bag of word processing documents, spreadsheet files and PDFs. If the number of files is only a few hundred, and therefore you don’t need a litigation support tool to manage the volume of materials to review, you can use a tool like Quick View Plus to view all of the documents without the need to open each item in its native application. This is particularly important if you don’t happen to have the native application for each type of file on the CD. You can quickly navigate through the explorer tree or move down the file list item by item. The files will display in the Quick View Plus viewer.

You can print or copy the items that are of interest for further use. This program can be downloaded for less than $50 at www.avantstar.com/metro/home/downloads.

If you receive a CD or DVD with more than a few hundred items, and you want to create collection of searchable documents from the CD or DVD, another reasonably priced option is dtSearch Desktop. For less than $200 you can use this program to create an indexed, fully searchable collection from the raw data you receive. You can search the collection by keyword or use more-advanced Boolean search techniques. Hits will be displayed in a list ordered by relevancy similar to Google or your standard legal research programs. Individual items can be viewed with the dtSearch viewer and copies or printed versions of the items of interest can be made. See www.dtsearch.com/download.html.

Sometimes you will be presented with a more extensive collection of data and some type of litigation support program is warranted. One option that may not come immediately to mind is the use of a trial presentation program like TrialDirector to manage your documents. All trial presentation programs use an internal database to manage the images that are contained within it, and most support both native and non-native files. Most manage transcripts as well. The databases are searchable, and limited coding of standard fields of information is possible. Thus, you can obtain all the benefits of a trial presentation program in terms of the presentation of electronic evidence, ability to edit video, use of synchronized video with transcripts, etc., while at the same time meeting your needs for a basic litigation support database. A program like TrialDirector is available for around $800 per seat. See www.indatacorp.com/TrialDirector.html.

You’ve probably heard about cloud-based litigation support tools for managing e-discovery. Up until the recent past, the monthly costs of using such technology made them unsuitable for smaller cases. Now it’s possible to use full-fledged, cloud-based litigation support tools storing between 1 to 10 GB of data for a monthly fee. When you consider that a cloud-based solution requires no technology infrastructure apart from a PC or laptop and a high-speed Internet connection, and no purchase of software or annual software maintenance, this type of monthly fee can be quite reasonable if your case is large enough to warrant a litigation support database.

Several vendors offer good products in this price range including Lexbe Online (www.lexbe.com) and Nextpoint’s Discovery Cloud and Trial Cloud (www.nextpoint.com).  While these products are suitable to managing very large cases, they lend themselves to smaller cases as a cost-effective option for full litigation support management.

Planning, a targeted approach to discovery, cooperation between counsel, and the use of the proper tools to meet your specific case needs can help you lessen the cost of e-discovery in smaller cases. There are many practical options available short of a dedicated litigation support database solution. You just need to find what works best for you within the budget you have available.

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