Law360, New York (June 09, 2010) -- In today's economy, curbing the expenses associated with the discovery of electronically stored information in civil litigation has taken on a new urgency.
Here, legal experts weigh in on the five most effective strategies lawyers can employ to keep e-discovery costs under control and cash-strapped clients happy.
Know Where You're Going
Since time is money, the first step in cutting e-discovery costs is determining a clear, targeted approach to collecting the relevant data as expeditiously as possible.
However, one of the biggest challenges companies face when producing electronically stored information is that they don't know where the data is or how to find it, according to Trey Cox, a partner with Lynn Tillotson Pinker & Cox LLP.
"As soon as possible, identify your custodians," he said. "Start by mapping your data. Literally create an 'org chart'-like data map to expedite identifying target custodians prior to collection and preservation."
To that end, in-depth custodian interviews should be conducted early on to obtain file path and other information about custodian data sources, according to Michael Collyard, a partner at Robins Kaplan Miller & Ciresi LLP.
"For those custodians who do not store their data in an organized manner, work with them to develop keyword search terms that you can use to locate their data," he said. "If done correctly, this will allow you to cut through the chaff and get to what's relevant. It also should reduce the volume of documents collected and save you time and money on document review."
In addition, Cox noted, where the data is makes a big difference in the collection process. Before walking into a "meet and confer" session with the opposing counsel - during which you will be required to discuss the form of production, data preservation and privilege waiver as pertaining to electronic discovery - determine whether the data is on your network now or stored off-site on backup tapes, he advised.
Also important to consider, Cox said, is what media the current data is stored on and how much effort and processing will be required to capture it all in a common way. "If you understand the logistical obstacles, you can assess how much time, effort, and money your production will require, not to mention the negotiation advantage this information will give you in the meet and confer," he said.
Use a Fine-Toothed Comb
"The elephant in the room is data volume," said Robert Brownstone, co-chair of the electronic information management practice group at Fenwick & West LLP. "By reducing volume at various places along the e-discovery timeline, counsel can enable a client to avoid the 'triple whammy' of e-discovery costs."
Since the lion's share of the cost in producing electronically stored information lies in the legal review process, it makes sense to drive down the volume of data you send to outside counsel at a cost of $300 to $400 an hour for review, Cox said.
"Identifying the goal is simple: collect only the smallest legally defensible data set," he said.
Randall J. Sunshine, a partner at Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, said that except in bet-the-company cases in which discovery must necessarily be broad, lawyers too often fail to separate early on what will truly affect the result in the case from what is perhaps interesting or tangentially relevant.
Once the crucial information is identified, he said, written and deposition discovery should be focused almost exclusively on that data set.
"Depositions are a perfect example," he said. "Most cases turn on the limited deposition testimony of a few witnesses, yet lawyers slog through numerous tangential depositions and, more importantly, often don't plan their questioning of the other side's key witnesses in order to obtain the most helpful testimony."
Another problem, he said, is that frequently clients aren't willing to use enough of their budget for early analysis, including hiring consultants and experts, which in the end is counterproductive.
"Sophisticated clients get this and are willing to spend early money with the comfort of knowing there's a thoughtful plan in place," he said.
Choose Your Keywords Carefully
Using targeted keywords is another effective cost-cutting strategy, because culling the relevant information from your pool of data slashes the amount of time everyone involved in the case will have to spend reviewing extraneous information.
At the meet and confer, a central point of the negotiation is sure to be what keywords you will employ to sift the data before you produce it, according to Cox.
For that reason, he said, you must be mindful of keywords that are vague and yield large amounts of extraneous data, because whatever the search yields will have to be reviewed by the outside counsel.
"If you can negotiate good keywords you will go a long way toward reducing the mountain of ESI outside counsel will have to review," he said.
Brownstone, for his part, recommended culling down the data set via intelligent searching and filtering, including objective criteria such as dates and file format extensions like ".exe" before turning reviewers loose to conduct document review.
Don't Be Afraid to Search and Destroy
According to Cox, good proactive document retention policies are another crucial element in keeping discovery costs low. "ESI that has no relevant business use and is not subject to litigation should be destroyed," he said. "If not, it is an ESI problem just waiting for a lawsuit."
If you retain data that you do not need and your records retention policy allows you to destroy, make sure it is destroyed on a regular basis, Cox added.
"If you fail to do so and a lawsuit is filed, that should-have-been-destroyed information becomes discoverable," he said. "You will be kicking yourself if you spend thousands of dollars sifting and reviewing information that never should have been part of the company's records."
Honesty Is Your Best Policy
According to Brownstone, it is also crucial to be up-front with the client at every step of the discovery process.
"Make sure that the client is not charged per gigabyte of collected data or per reviewer's click whether you build an in-house tech team - as our law firm did in 2001 - or contract with a tech vendor," he said.
After all, Brownstone noted, the foremost goal is to efficiently provide the client as soon as possible with an assessment of the strength or weakness of the claim or defense.
"By achieving early analysis of the key e-docs' underlying content, at times you can help the client avoid Kafkaesque protracted litigation - and thus reduce overall litigation fees," he said.
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