4 Strategies to Reduce eDiscovery Review Costs
Mike Frazier, Texas Lawyer
August 12, 2015
Discovery, a once fairly straightforward process, has become exponentially more cumbersome with the adoption and proliferation of electronic data. The line between "records" and "documents" has blurred to the point of obsolescence as new forms of electronic data permeate the corporate environment and are used interchangeably to conduct the organization's business. Discovery is now synonymous with eDiscovery, which has developed into its own industry within the legal profession due to the complexity involved to preserve, collect, process, and produce electronic data from all forms that may be potentially relevant in litigation.
The couple hundred bankers boxes of documents per client that may have been arduous for legal teams to deal with 10-12 years ago has now turned into over 4 zettabytes (over 4 trillion gigabytes) of crushingly complex data worldwide. What's more, that data is doubling every 18 months with expectations that it will grow by a factor of 44 by 2020. Consider now that the cost of one gigabyte of data in discovery can be upwards of $20,000 to deal with and it's not difficult to understand how costs can soar out of control. The vast majority of that cost, roughly 80-90 percent, lies in the attorney review phase of the data's discovery lifecycle. Given that, it is crucial to develop and implement strategies to reduce the cost of review when dealing with eDiscovery in order to efficiently and effectively manage a case. What follows are four simple strategies that, when properly approached and implemented, can greatly reduce the cost of review for almost any type and size of matter.
1. Take time to plan and investigate up front. When document review costs as much as it does, limiting the amount of data that is collected for review is the first step toward reducing spend. It may seem simple but, surprisingly, many attorneys skip this step, or at least don't pay much attention to it (reasons for which is a topic unto itself). Understanding your client's data—what is created, why, where it's kept, how it's kept, to what does it relate—is a very important first step in avoiding over collection and downstream processing and review costs. Another key consideration is to bring in a trusted source to help understand the process and what options are available. Doing this at the outset of a matter, rather than once you're in a crunch, will make the entire eDiscovery process more efficient.
2. Find what you need without breaking the bank through data filtering. Whether the action plan calls for targeted collections or full forensic disk images, attorneys are going to end up collecting a lot of data that isn't relevant. The second strategy is to apply data filtering techniques to reduce the "noise" and get at the data that you actually want to see. When data collections are done, system files, duplicates, and other information are necessarily captured. Technology can be applied to deNIST and deduplicate (removing known system files and Hash value duplicates). As a first pass, this can remove a large portion of data. Additionally, technology can be used to identify data within a specific date range, specific file types (and remove irrelevant file types), run email domain inclusion/exclusion filters, perform concept and keyword searches, and more. All of this serves to focus in on only that data the needs to be reviewed and removing what doesn't.
3. Use analytics to increase review efficiency. When most attorneys hear analytics they immediately think of "predictive coding" and the process of creating and reviewing seed sets, training the system to identify responsive and nonresponsive documents, sharing nonresponsive documents with opposing counsel, and repeating the process until you're comfortable with the results you are receiving. That is one form of analytics, but it's not the only one. Techniques included in the more widely used term "technology assisted review" may include things like identifying content duplicates/near duplicates, email threading, concept identification and clustering, and more. Given the figure stated above—that 80-90 percent of the cost is spent in review—fully understanding the available options and implementing appropriate analytics strategies in your review is extremely important to controlling costs and speeding review. As corporate clients become savvier about review options, and price points for TAR applications become more affordable, conducting a straight linear document review will no longer be acceptable. Using TAR will become the rule, rather than the exception.
4. Project manage, and then project manage some more. An experienced eDiscovery project manager is worth their weight in gold. Not only will a good project manager help develop efficient review workflow options, they are adept at recommending and implementing all of the techniques and methodologies discussed above. This can be the key to having a review process run smoothly or having one problem after another. Project managers bring consistency to how data is handled, databases are structured, analytics are applied, issues are coded, reviewers are trained and monitored, and productions are executed. These unsung heroes of eDiscovery are why clients stay with a chosen service provider. The ability to rely on someone with a depth of experience to deliver a consistent product, so that you can focus on the case strategy, is invaluable.
When these strategies are implemented they will go a long way toward running an efficient and effective review process. Taking time to plan, using technology to your advantage, and having a trusted partner to manage the project, you'll discover that discovery doesn't have to be as painful and costly as past experiences have led you to believe. You may even notice an advantage over your less prepared adversaries.
Mike Frazier is director of Strategic Initiatives at TERIS in Austin. In addition to developing strategic company initiatives, Mike directs the company's proactive consulting and court reporting service offerings. Consulting services include litigation readiness, legal operations management, technology solution selection consulting, eDiscovery process development, and information governance and information security process development.
Reprinted with permission from the Aug. 12, 2015 edition of Texas Lawyer. © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.