cost management in e-discovery
DESCRIPTION
Cost Management in E-Discovery. Identifying and Taking Advantage of the Opportunities for Cost Management in the E-Discovery Process. James M. Wright, P.E. Wright Consulting LLC - Houston Formerly: Director - Electronic Evidence Consulting - FTI Consulting, Inc. - PowerPoint PPT PresentationTRANSCRIPT
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Cost Management in E-Discovery
Identifying and Taking Advantage of the Opportunities for Cost Management in
the E-Discovery Process
James M. Wright, P.E.James M. Wright, P.E.
Wright Consulting LLC - HoustonWright Consulting LLC - Houston
Formerly:Formerly:
Director - Electronic Evidence Consulting - FTI Consulting, Inc.Director - Electronic Evidence Consulting - FTI Consulting, Inc.
Director of E-Discovery - HalliburtonDirector of E-Discovery - Halliburton
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Some Basic Considerations
• Three general kinds of costs:– Internal Costs
• People, Hardware, Technology
– Technology Vendors• Services, technology fees
– Legal Review• Law firms, technology fees
• Legal review is always the greatest component, and data volume reduction is the key to reducing those costs
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More Basic Considerations
• Cost Management actions may affect Risk– Spoliation– Good Faith with the court– Case Strategy– Risk Transfer from OSC to Client
• Opportunities for cost management in the process have narrow time windows.
• Decisions tend to be matter-specific• Outside counsel may push back
ESI Volume ReductionTwo Main Methods
• Reduce ESI in play -26[b][2][c] NRA Claims– Catalog in place, don’t even collect– Necessitates early action– Cost Estimating tricky, subjective– Meet and Confer negotiation critical– Low Hanging Fruit – Tiered approach
• Minimize the cost of processing– Filetype, date filters– Consider Clawbacks, Quickpeeks– Initial review cost-saving methods
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5
Scheduling Conference
Duty to preserve Filing
21 days?? days
Meet &
Confer
Early Actions TimelineUnder the new FRCP
Identify & Collect ESI
Analyze ESI : Qty/Type
Develop ED Plan
Prep for Meet & Confer
time
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The E-Discovery Team
Client
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Counsel
3
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E-DiscoveryVendors
• Client– Owns Risk, Pays Costs, so can make risk
decisions quickly– Knows ESI best, has IT resources– Ability to move early and quickly
• Counsel– Strategic Legal Knowledge– Familiarity with Court– Knowledge of legal issues in E-Discovery
• E-Discovery Tech Vendor[s]– Powerful technology options– Ability to apply resources as needed– Experience in processing ESI– Ability to provide expert testimony to E-
Discovery matters
Discovery
Management
• Discovery Management– Develops & Manages Discovery Plan
• Activities• Resources• Schedule
– Identifies Risk & Cost Issues– Coordinates Discovery Team
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The E-Discovery Process-Overview
PreservationPreservation CollectionCollection AnalysisAnalysis
DiscoveryDiscovery
PlanPlan
ESIESI
ProcessingProcessing
LegalLegal
ReviewReviewProductionProduction
MeetMeet
&&
ConferConfer
Rule 16Rule 16
SchedulingScheduling
ConferenceConference
PHASE 1PHASE 1
COLLECTIONCOLLECTION
& SCOPE& SCOPE
PHASE 2PHASE 2
PLANNING &PLANNING &
NEGOTIATINGNEGOTIATING
PHASE 3PHASE 3
EXECUTIONEXECUTION
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PHASE 1 Actions & Decisions
PreservationPreservation CollectionCollection AnalysisAnalysis
1.1. Identify Key PlayersIdentify Key Players
2.2. Publish Lit HoldPublish Lit Hold
3.3. Interview Key PlayersInterview Key Players
4.4. Determine Relevant ESI Determine Relevant ESI Locations with Data MapLocations with Data Map
5.5. Identify Vulnerable ESIIdentify Vulnerable ESI
6.6. Determine Privacy or Determine Privacy or Confidentiality IssuesConfidentiality Issues
7.7. Determine Need for Determine Need for ForensicsForensics
8.8. Notify Opposing Notify Opposing Counsel?Counsel?
1.1. CollectCollect
2.2. Coordinate with Coordinate with CustodiansCustodians
3.3. Maintain Chain Maintain Chain of Custody of Custody RecordsRecords
1.1. Generate ESI Generate ESI Collection Inventory Collection Inventory ReportReport
2.2. Identify File Types of Identify File Types of InterestInterest
3.3. Identify Files where Identify Files where Native is NecessaryNative is Necessary
4.4. Identify non-standard Identify non-standard File TypesFile Types
1.1. Non-IndexableNon-Indexable
2.2. Non-Commercially Non-Commercially usableusable
3.3. Internal ProprietaryInternal Proprietary
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Preservation Cost Mgmt Opportunities
PreservationPreservation
1.1. Identify Key PlayersIdentify Key Players
2.2. Publish Lit HoldPublish Lit Hold
3.3. Interview Key PlayersInterview Key Players
4.4. Determine Relevant ESI Determine Relevant ESI Locations with Data MapLocations with Data Map
5.5. Identify Vulnerable ESIIdentify Vulnerable ESI
6.6. Determine Privacy or Determine Privacy or Confidentiality IssuesConfidentiality Issues
7.7. Determine Need for Determine Need for ForensicsForensics
8.8. Notify Opposing Notify Opposing Counsel?Counsel?
Identification of Key Players establishes overall scope of ESI collection.
Technology tools exist to automate much of this process.
Use of questionnaires in advance of personal interviews
Develop a detailed Data Map internally which can be edited for each matter
If forensic collections are deemed appropriate, consider whether outside
collectors are needed.
If you intend to exclude any significant ESI from preservation, consider notifying OSC
to limit later spoliation risk.
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Collection Cost Mgmt Opportunities
CollectionCollection
1.1. CollectCollect
2.2. Coordinate with Coordinate with CustodiansCustodians
3.3. Maintain Chain Maintain Chain of Custody of Custody RecordsRecords
Consider internal collections. Will
necessitate software, hardware, and people.
Establish protocol for collections from PC’s
which is subject to interruption and can be very time-consuming.
Consider whether to do this over the network or locally in user’s office[s].
Decide if making collection as a means
for preservation is cost-effective.
Perform collections internally with enterprise applications that
track CoC automatically.
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Analysis Cost Mgmt Opportunities
AnalysisAnalysis
1.1. Generate ESI Generate ESI Collection Inventory Collection Inventory ReportReport
2.2. Identify File Types of Identify File Types of InterestInterest
3.3. Identify Files where Identify Files where Native is NecessaryNative is Necessary
4.4. Identify non-standard Identify non-standard File TypesFile Types
1.1. Non-IndexableNon-Indexable
2.2. Non-Commercially Non-Commercially usableusable
3.3. Internal ProprietaryInternal Proprietary
Confirm the availability of applications or resources that can generate these
reports quickly. These can be desktop apps, or provided by ED vendors.
Consider using “inclusive” rather than “exclusive” approach. Identify hi-qty file types that can be excluded [e.g. html]
Quantity of these file types can present significant cost challenges
Non-indexable file types cannot be electronically searched, so special
process [e.g. OCR], or costly human review is necessary
Consider the means to produce these in “reasonably usable” forms.
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PHASE 2 Actions & Decisions
1.1. Identify File Types & Identify File Types & Search CriteriaSearch Criteria
2.2. Develop Plan(s) for Non-Develop Plan(s) for Non-Index-able and other File Index-able and other File Types to be SearchedTypes to be Searched
3.3. Develop Plan for Backup Develop Plan for Backup and other Mediaand other Media
4.4. Establish Burden Establish Burden Arguments for Excluded Arguments for Excluded [NRA] File Types[NRA] File Types
5.5. Identify 30[B]6 Identify 30[B]6 Deponent[s]Deponent[s]
DiscoveryDiscoveryPlanPlan
MeetMeet&&
ConferConfer
Rule 16Rule 16SchedulingSchedulingConferenceConference
1.1. Who Attends?Who Attends?
2.2. Present Proposed Present Proposed Discovery PlanDiscovery Plan
3.3. Negotiate Terms for Negotiate Terms for Search Criteria Search Criteria [Keyword List Sizes, [Keyword List Sizes, etc.]etc.]
4.4. Negotiate Privilege Negotiate Privilege IssuesIssues
5.5. Negotiate Form of Negotiate Form of Production & Timing Production & Timing [Rolling?][Rolling?]
6.6. Negotiate Negotiate Authentication IssuesAuthentication Issues
1.1. Who Attends?Who Attends?
2.2. Negotiate Negotiate Differences in Differences in Discovery PlanDiscovery Plan
3.3. Present/Defend Present/Defend Burden Arguments Burden Arguments for NRA ESIfor NRA ESI
4.4. Argue Cost-ShiftingArgue Cost-Shifting
5.5. Negotiate ScheduleNegotiate Schedule
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Discovery Planning Cost Mgmt Opportunities
1.1. Identify File Types & Identify File Types & Search CriteriaSearch Criteria
2.2. Develop Plan(s) for Non-Develop Plan(s) for Non-Index-able and other File Index-able and other File Types to be SearchedTypes to be Searched
3.3. Develop Plan for Backup Develop Plan for Backup and other Mediaand other Media
4.4. Establish Burden Establish Burden Arguments for Excluded Arguments for Excluded [NRA] File Types[NRA] File Types
5.5. Identify 30[B]6 Identify 30[B]6 Deponent[s]Deponent[s]
6.6. Decide privilege issuesDecide privilege issues
DiscoveryDiscoveryPlanPlan
It is essential that a file type listing [both number and size of each file type] is available to do this. Not all ED vendors can generate this information easily.
Parties will usually accept a date range filter [i.e. file creation date]. The range must be negotiated
This can be complex, but is extremely important, as non-indexable files [e.g images] cannot be electronically searched, so expensive
human review is needed. Quantify these file types and if a significant number exist, either argue to eliminate them from further review if possible or propose an alternate, limited, processing scheme [e.g.
sampling, OCR & E-search, narrow date range, etc.].Also address files that should be produced native. & discuss
authentication thereof.
After identifying whatever backup media exists that might contain discoverable ESI, determine if it [largely] exists elsewhere and decide whether it can be argued that it is NRA [Not Reasonably Accessible]. Develop argument to include Undue Cost, Business Disruption, and
Disproportionality. Be prepared to defend the numbers at the Rule 16 hearing, or arrange for ED vendors to do so.
Decide who will be the 30[b]6 wtiness[es] to testify to collection methods and actions, and to defend burden arguments.
Does a Clawback Agreement make sense ?
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Meet & Confer Cost Mgmt OpportunitiesMeetMeet
&&ConferConfer
1.1. Who Attends?Who Attends?
2.2. Present Proposed Present Proposed Discovery PlanDiscovery Plan
3.3. Negotiate Terms for Negotiate Terms for Search Criteria Search Criteria [Keyword List Sizes, [Keyword List Sizes, etc.]etc.]
4.4. Negotiate Privilege Negotiate Privilege IssuesIssues
5.5. Negotiate Form of Negotiate Form of Production & Timing Production & Timing [Rolling?][Rolling?]
6.6. Negotiate Negotiate Authentication IssuesAuthentication Issues
In addition to outside counsel, consider having the E-
Discovery coordinator[s] present, to consult with counsel
on ED issues, and to discuss with opposing party, if so
directed.
Present a detailed, proposed E-Discovery Plan, as
developed in the previous steps. Leave room for
negotiation.
Discuss date ranges and file types first, as these are not
normally rigorously contested.For Keywords, agree to a procedure, but not specific
keywords at this time.
Negotiate a “Clawback” if deemed appropriate.
Subject to the court’s likely interest in expediency,
negotiate enough time to deal with the keyword process, and
subsequent review. Try to agree on a rolling production.
Negotiate Authentication methodology for any files to be produced in native
format.
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Rule 16 Conf Cost Mgmt OpportunitiesRule 16Rule 16
SchedulingSchedulingConferenceConference
1.1. Who Attends?Who Attends?
2.2. Negotiate Negotiate Differences in Differences in Discovery PlanDiscovery Plan
3.3. Present/Defend Present/Defend Burden Arguments Burden Arguments for NRA ESIfor NRA ESI
4.4. Argue Cost-ShiftingArgue Cost-Shifting
5.5. Negotiate ScheduleNegotiate Schedule
Consider having E-D specialist[s] attend, or at least be available outside the meeting for consultation or testimony, or
at a minimum. by phone.
Be prepared to defend any burden arguments for the exclusion of ESI, even if agreed to by opposing counsel in the meet and confer. Consider having ED vendors present
or on call if deemed appropriate.
Be prepared to present the arguments for areas where agreement could not be reached in the Meet and Confer.
If arguments to exclude NRA ESI are unsuccessful, be prepared to argue for cost-
shifting.
Endeavor to get enough time to execute the Discovery Plan, and be mindful of the keyword process and review time. Try to agree on a rolling production.
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PHASE 3 Actions & Decisions
1.1. Selection of E-Selection of E-Discovery Vendor(s)Discovery Vendor(s)
2.2. Management of Management of Vendor(s)Vendor(s)
3.3. Analysis of Vendor Analysis of Vendor Reports during Reports during ProcessingProcessing
4.4. Decisions on Filtering Decisions on Filtering CriteriaCriteria
5.5. Negotiate Keyword Negotiate Keyword List & ProcessingList & Processing
6.6. Coordination of any Coordination of any Vendor TestimonyVendor Testimony
1.1. Develop Review PlanDevelop Review Plan
2.2. Single or Multi-Single or Multi-Phase?Phase?
3.3. Contract Attys?Contract Attys?
4.4. Review Platform[s]Review Platform[s]
5.5. Limited Review due Limited Review due to Clawback?to Clawback?
6.6. Prioritize Review per Prioritize Review per Rolling Production Rolling Production AgreementAgreement
7.7. Develop Privilege Develop Privilege Log[s]Log[s]
1.1. Coordinate Coordinate Productions per Productions per “Rolling” Agreement“Rolling” Agreement
2.2. Confirm Confirm AuthenticationAuthentication
3.3. Oversee and Log Oversee and Log ProductionsProductions
4.4. Audit E-Discovery Audit E-Discovery Vendor QA/QC Vendor QA/QC ProcessesProcesses
ESIESI
ProcessingProcessing
LegalLegal
ReviewReviewProductionProduction
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ESI Processing Cost Mgmt Opportunities
1.1. Selection of E-Selection of E-Discovery Vendor(s)Discovery Vendor(s)
2.2. Management of Management of Vendor(s)Vendor(s)
3.3. Analysis of Vendor Analysis of Vendor Reports during Reports during ProcessingProcessing
4.4. Decisions on Filtering Decisions on Filtering CriteriaCriteria
5.5. Negotiate Keyword Negotiate Keyword List & ProcessingList & Processing
6.6. Coordination of any Coordination of any Vendor TestimonyVendor Testimony
ESIESI
ProcessingProcessing
Based on the Discovery Plan, vendor selection should consider amount and type[s] of ESI, the type[s] of processing planned, the time allowed to process it, and the amount of it that is expected to pass the filters to legal review. To facilitate the process, it is best to have standing Master Agreements with the vendor[s] of
choice.
The decision of who will manage the ED process is essentially important. Client-management is always best
from a cost management perspective.
The ability of the vendor to generate reports on the ESI as it is processed [the earlier the better], is essential. Always
select vendors who can meet your needs in this regard. Of special importance is keyword “hit reports” that quantify the
number and total volume of “hits” for each keyword.
Once quantitative reports are generated by the EDVendor, decisions on filtering criteria can be made. Start with highly
selective criteria and expand as needed, to assure hi responsive rates early to allow production to begin. This is especially important with keywords, which is why this was
negotiated earlier in Phase 2.
To the extent that burden or other arguments to limit processing of ESI are relevant, identify the responsible party
early so preparation can begin.
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Legal Review Cost Mgmt Opportunities
1.1. Develop Review PlanDevelop Review Plan
2.2. Single or Multi-Single or Multi-Phase?Phase?
3.3. Contract Attys?Contract Attys?
4.4. Review Platform[s]Review Platform[s]
5.5. Limited Review due Limited Review due to Clawback?to Clawback?
6.6. Prioritize Review per Prioritize Review per Rolling Production Rolling Production AgreementAgreement
7.7. Develop Privilege Develop Privilege Log[s]Log[s]
LegalLegal
ReviewReview
As soon as it becomes apparent what kind of
volume of data will make it to legal review, decide how to proceed: Single review
with Trial Counsel, or multi- review with initial review performed by lower cost
alternatives.
If contract attys are selected, several options exist:1] Self-contracted, hourly2] Specialty firm, hourly or unit rate3] All-inclusive fixed price
Selection of review platform is critical. If the file count is high [tens of thousands],
conceptual-grouping platforms are proven to
reduce cost significantly.
Based on the perceived sensitivity of the document
collection, consider producing without legal
review, subject to a privilege claw-back
agreement. Focus initial review on the “low-hanging fruit” so
production can begin early, minimizing complaint from the requesting party. This
gives more time to cull subsequent productions.
Many EDV hosting platforms can auto-
produce privilege logs for files so-coded during
review.
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Production Cost Mgmt Opportunities
1.1. Coordinate Coordinate Productions per Productions per “Rolling” Agreement“Rolling” Agreement
2.2. Confirm Confirm AuthenticationAuthentication
3.3. Oversee and Log Oversee and Log ProductionsProductions
4.4. Audit E-Discovery Audit E-Discovery Vendor QA/QC Vendor QA/QC ProcessesProcesses
ProductionProductionHaving negotiated the form of production in the Meet and Confer, the ED vendor can generate the production[s] during normal hours, and not the usual weekend 24/7 panic blitzkrieg, for which premiun charges apply. This also allows time for proper QA to confirm redactions,
privileges, etc.
Having negotiated a protocol for production of native files, the EDV can generate the production accordingly,
along with the cross-reference file with the authentication code [e.g hash values].
Depending on the size and schedule of the productions, stay vigilant as to the schedule to avoid last-minute
surcharges.
Be sure your EDV is maintaining timely QA on the process. This tends to get behind and can create delays and last-
minute problems.