March 28, 2012 Practice Points

E-Discovery on a Budget

By Cindy Albracht-Crogan

E-discovery can be astronomically expensive. It is especially disabling to a small case. The e-discovery dilemma is, in large part, the result of the current pricing system established by vendors, most of which use the per-commodity pricing system and charge hundreds of dollars per gigabyte. A simple license and annual maintenance plan or a monthly subscription fee does not exist. And, the e-discovery technology was initially developed for large cases with large data sets in such a way that vendors with revenue streams based on processing/hosting terabytes of data cannot adapt to smaller projects. Moreover, products that have been designed to work with large data collections cannot easily scale down to small sets of information.

These big products have big prices that are beyond the scope of most small firms and small case budgets. Thus, solo and small-firm practitioners (and their clients) must pay exorbitant fees to proficiently process electronically stored information (ESI) or face the penalties: findings of spoliation of evidence, summary judgment, sanctions that can include adverse inferences and jury instructions, and even state bar complaints.

The problem can be illustrated through the following example of a forensically sound collection of 800 GB (the size of one hard drive of a typical computer) and a data set that yields 200 GB of reviewable material. A typical ESI vendor will charge $200 per GB for processing, plus $50 per month per GB and $90 per month per user to host the data. If a case lasts 18 months, the total cost is just under $350,000. And, if we accept the commonly cited assumption that the reviewing process will comprise 60–70 percent of the total project price, the project cost—to process, maintain, and review the data from one computer—will be close to $1 million.

Are there small-case programs? Is there a way to process and review small volumes of data for a reasonable price? Are there inexpensive, but reliable, ways attorneys can use themselves to host and review the same data? Low-cost programs designed for small cases have begun to appear and, for the most part, are modestly priced given their capabilities. Functions can be limited for each product as compared to a higher-end option, but they may suffice for your specific needs. A Google search reveals several options, including eDiscovery DIY, Lexbe e-Discovery, Bit-X-bit in-a-box, and LexisNexis Total Litigator. And more products may be on the way.

Keywords: litigation, solo practitioners, small firms, e-discovery, budget

Cindy Albracht-Crogan, Cohen, Kennedy, Dowd & Quigley


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