E-discovery is widely considered to be expensive, and while it often is, parties don’t need to break the bank to have access to the valuable evidence that e‑discovery makes available. In one recent case, a vendor quoted over $22,000 to collect email and social media evidence. In another case, a vendor projected that e-discovery involving approximately 505GB would cost $189,300. The parties in these cases, however, likely could have paid far less if they had taken the reigns of the e-discovery process from the beginning. In fact, addressing e-discovery early in a case typically saves money because the precision of electronic evidence often causes cases to settle. (Why go to court when an email or a text shows exactly what happened?) This article will review five steps that have proven helpful for keeping e-discovery costs under control.
1. Take Four Hours to Learn About Your Client’s Sources of ESI
The first step in low cost e-discovery is to scope the project at hand by understanding your client’s sources of electronically stored information (ESI), including finding out at the earliest possible date what information your client has that could be requested in discovery. All of the later steps depend on getting this step right, so don’t go halfway. It’s essential to dive deep, investigate, and document what you learn. Techniques for assessing the scope of information will depend on whether the client is a business or an individual, although you might need to apply both techniques in some cases.
Business Client E-Discovery Assessment
The trick in assessing a business client’s exposure to e-discovery is to find the person who knows the most about the business’s IT systems and hold an on-site meeting of at least two hours with him or her. You can start with questions like:
- What email systems are in place? Do you have an email server onsite, or do you use cloud hosting, such as Office 365 or Google Apps? Do your colleagues communicate with each other via text messages? If so, do they use their own phones, or do they use phones that the business issues to them? Do you use a business chat system, such as Slack?
- How and where do employees store their files and data? Do you have a share network drive, combined with local storage on employee machines? How much data does the server hold currently? Do you use a cloud system, such as Box.com? Do employees also store files on their personal computers? Are there any policies on this issue?
- What systems do you use to track data related to any of the issues in the lawsuit or potential lawsuit? What databases are involved in your business operations?
- How do you handle backups for various categories of data?
By asking these questions (and many follow-up questions), you’ll begin to get a picture of where your client’s data resides and which devices, servers, email accounts, and applications are most likely to hold the data that could constitute evidence. Documenting what you learn during these conversations is critical. Take the time to write a memo outlining what you’ve learned after the meeting; it will be useful later.
Individual Client Assessment
Understanding the electronic evidence in an individual’s custody can be challenging because there’s no IT person to help you: you have to be the expert. If you’re unfamiliar with social media, apps, and wearable technology, it may help to bring a staff member or other attorney who can help you ask questions. At a minimum, you’ll want to ask about the following items:
- What email accounts do you have? Give me each email address. How do you use each account? Do you share these accounts with anyone?
- What social media accounts do you have? How frequently do you use each one, and how do you use each one?
- What computers, smartphones, iPads, etc., do you own? How do you use them? Have any of these devices been lost or damaged in the last few years? What happened and when?
- Do you use any external drives or cloud storage accounts? For what purposes?
Sometimes these questions lead into ticklish areas, and your client may show signs of embarrassment or consternation. That’s okay. It’s better to find out early about the things your client has to hide than during a deposition or discovery dispute six months later.
Again, write a detailed memo of your findings. It’s essential for later steps.
2. Prepare and Implement a Preservation and Collection Strategy
With a sense of where your client’s data lives, you’re in a good position to determine an affordable and reasonable plan for preserving the appropriate data and collecting what needs to be collected. Imagine your client’s data as three concentric circles. The outermost circle consists of all of your client’s data. The next circle consists of the data that needs to be preserved. The innermost circle is the set of data that needs to be collected and searched during discovery. You don’t need to preserve all the data, and you don’t need to collect all of the data that you preserve. Making these distinctions and drawing these lines wisely will help to avoid one of the worst drivers of e-discovery costs—over-preservation.
Drawing good lines requires comparing the importance of a particular source of ESI with the difficulty and cost of preserving it. For example, if a particular individual at your client’s business was responsible for maintaining key records related to the litigation on a particular computer, hiring a vendor to make a forensic copy of that computer’s hard drive may be warranted. But a computer or smartphone belonging to an employee who never had anything to do with the facts underlying the case might not require any preservation at all. It’s counsel’s role to assist the client with making these decisions by balancing risks and costs.
After you’ve determined a plan, implement it and monitor it. Provide instructions to your client in the form of a “litigation hold” on how to avoid destroying and modifying information related to the case. Be sure to put the letter in plain English so that individuals outside the IT department understand what they need to do. If you decide to retain a vendor for preservation and collection, obtain competitive bids for tasks such as imaging disk drives and collecting data from smart phones. Don’t let the vendor drive the ship, and always obtain specific quotes for each task the vendor will perform to avoid unpleasant cost overruns.
3. Practice Transparency and Cooperation
Motion practice, aggressive letter writing, obstructionism, and posturing can cause e-discovery costs to explode. These tactics are just as outdated as traditional paper discovery methods. Because of the complexity of e-discovery, the rules of procedure call for a high degree of cooperation, lest every case devolve into a zero-sum game of discovery warfare. The best way to promote cooperation is to practice it. Share information with the other side, be transparent about what you’re doing, and seek input on your preservation strategy and search terms. In other words, let the other side know you’re committed to keeping costs down, being straight up, and conducting discovery efficiently. This won’t work with every adversary, but you’ll be happy when it does. If your adversary continues to obstruct in spite of your efforts, you’ll be more successful with the court as a result of taking the high road.
4. Ask for What You Need and Not More
Blanket discovery requests for “any and all” documents in broadly defined categories are poorly suited to modern e-discovery practice. You’ll either get an objection and no documents, or you’ll get so many documents that you have to spend a fortune to review them all. The recent amendments to the Federal Rules of Civil Procedure (FRCP) make it even more important to hew closely to live issues in order to remain within the scope of discovery. Today, a small number of highly targeted discovery requests will often get you more than traditional and overbroad boilerplate discovery. If your requests are targeted enough, objections won’t stick.
Another critical, but often overlooked, technique is to specify the form of production when you request documents. I recommend asking for native documents and explaining specifically that this means you want .docx files for responsive Word documents, .xlsx for responsive spreadsheets, and so on. These files are more compact, easier to search, and richer in information. Revisit your instructions and definitions to ensure that you don’t have any boilerplate that contradicts your requests for native production. (While you’re at it, you might want to cut out all the boilerplate, or at least bring it up to date.)
5. Invest in Proper Tools
If you have a case involving e-discovery, you need a tool for reviewing native files and searching them. Yes, Windows and Outlook have search functionality, but they are not designed for e‑discovery. You’ll need an e‑discovery review platform that’s specially designed for performing power-searches of electronic files and previewing hits without modifying the underlying files. Even if you’re working with a vendor, it’s extremely valuable to have a review platform on your own computer, such as Nuix Proof Finder (which you can obtain for $100), so that you can perform a final search of files before you turn them over in discovery. Hitting “send” before you know what you’re sending is a very bad idea and could cost you a malpractice suit. With a copy of Proof Finder on your system, you’ll never run this risk.
The common thread in all of the steps I’ve outlined above is ensuring that you take charge of the e-discovery process. This doesn’t require learning to code or reading technical manuals—most of the techniques are common sense. If you run into any difficulties, reach out to a colleague or run a search on Google. There are many great resources online, such as Ball in Your Court, Bow Tie Law, and E‑Discovery Team, and a dictionary of e-discovery terminology. Most e‑discovery practitioners are keenly interested in helping other lawyers master this vitally important part of litigation, and are happy to lend a hand. By taking the reins of the e‑discovery process, you’ll do your clients an immense service—and you’ll future-proof your career.