TEN TIPS TO MINIMIZE TEN TIPS TO MINIMIZE THE COST OF e-THE COST OF e-

DISCOVERY DISCOVERY

ByByJason B. HirshJason B. Hirsh

Its ExpensiveIts Expensive

Beyond the burden e-discovery imposes Beyond the burden e-discovery imposes on corporations, in-house legal on corporations, in-house legal departments and outside law firms, it is departments and outside law firms, it is just plain expensivejust plain expensive

Understanding the ExpenseUnderstanding the Expense

A recent survey indicates that “43% of in-A recent survey indicates that “43% of in-house legal personnel admitted that they house legal personnel admitted that they did not know how much the company was did not know how much the company was spending in its entirety on e-discovery”spending in its entirety on e-discovery”

From the Ari Kaplan Advisors Industry Research From the Ari Kaplan Advisors Industry Research Report: A Conversation with Corporate Counsel: e-Report: A Conversation with Corporate Counsel: e-Discovery Trends and PerspectivesDiscovery Trends and Perspectives

TIP 1: Corporate ProtocolTIP 1: Corporate Protocol

A manageable and consistently enforced A manageable and consistently enforced document retention policy and legal hold policydocument retention policy and legal hold policy

Make sure you know: (a) what Electronically Make sure you know: (a) what Electronically Stored Information (“ESI”) you have, (b) how Stored Information (“ESI”) you have, (b) how your ESI is stored and (c) where your ESI is your ESI is stored and (c) where your ESI is storedstored

Instruct your employees ahead of time Instruct your employees ahead of time regarding your document retention policy, regarding your document retention policy, legal hold policy and implementation of these legal hold policy and implementation of these policiespolicies

TIP 1: Corporate ProtocolTIP 1: Corporate Protocol

A document retention policy is only effective A document retention policy is only effective if consistently followed and enforcedif consistently followed and enforced

Failure to have a retention policy can result in Failure to have a retention policy can result in sanctions. sanctions. Metropolitan Opera Assoc. v Local Metropolitan Opera Assoc. v Local 100100, 212 F.R.D. 178 (S.D.N.Y. 2003), 212 F.R.D. 178 (S.D.N.Y. 2003)

Unreasonable or unenforceable retention Unreasonable or unenforceable retention policy as harmful as none. policy as harmful as none. Carlucci v Piper Carlucci v Piper Aircraft Corp.Aircraft Corp., 102 F.R.D. 472 (S.D. Fla. 1984), 102 F.R.D. 472 (S.D. Fla. 1984)

TIP 1: Corporate ProtocolTIP 1: Corporate Protocol Training employees regarding your Training employees regarding your

document retention and legal hold policies is document retention and legal hold policies is required, because ignorance will not save required, because ignorance will not save you (no good heart, empty head defense)you (no good heart, empty head defense)

Safe harbor from sanctions if “information Safe harbor from sanctions if “information lost as a result of the routine, good-faith lost as a result of the routine, good-faith operation of an electronic information operation of an electronic information system” (FRCP 37(f))system” (FRCP 37(f))

TIP 2: Litigation Plan TIP 2: Litigation Plan

I understand the rules so how can I avoid I understand the rules so how can I avoid throwing away money on ESI?throwing away money on ESI? Three words – Plan, Plan, PlanThree words – Plan, Plan, Plan

TIP 2: Litigation PlanTIP 2: Litigation Plan Step 1:Step 1:

Review your document retention plan Review your document retention plan and determine: (a) what ESI you have, and determine: (a) what ESI you have, (b) how your ESI is stored, (c) where (b) how your ESI is stored, (c) where your ESI is stored and (d) if your ESI can your ESI is stored and (d) if your ESI can be accessed be accessed

Step 2:Step 2: Based on this information determine: (a) Based on this information determine: (a)

how to search for your ESI, (b) how to how to search for your ESI, (b) how to review your ESI and (c) how to produce review your ESI and (c) how to produce your ESIyour ESI

TIP 3: Litigation HoldsTIP 3: Litigation Holds

Do not waste critical time: Do not waste critical time: Ensure that you have a draft litigation Ensure that you have a draft litigation

hold letter ready to be issuedhold letter ready to be issued Ensure that your employees are Ensure that your employees are

immediately made aware of the need to immediately made aware of the need to implement the litigation hold implement the litigation hold

A failure can result in dire consequencesA failure can result in dire consequences

TIP 3: Litigation HoldsTIP 3: Litigation Holds Sending: Sending:

Tie to specifics allegationsTie to specifics allegations List specific categories of data/documents (Not – List specific categories of data/documents (Not –

“everything relating to…)“everything relating to…) Implementing:Implementing:

Error on the side of preservationError on the side of preservation Be certain that automatic deletion systems are Be certain that automatic deletion systems are

disableddisabled Identify and notify the key players Identify and notify the key players Identify, sequester and preserve relevant documentsIdentify, sequester and preserve relevant documents

TIP 3: Litigation HoldsTIP 3: Litigation Holds Safety checks:Safety checks:

Reissue periodic updates and remindersReissue periodic updates and reminders Check for complianceCheck for compliance

Don’t just assume people will follow the litigation Don’t just assume people will follow the litigation holdhold

TIP 3: Litigation HoldsTIP 3: Litigation Holds Talk to IT – They know how to get what you Talk to IT – They know how to get what you

needneed Responsible for data systems and Responsible for data systems and

housekeepinghousekeeping Back-up proceduresBack-up procedures Synchronization of data between users Synchronization of data between users

and systemsand systems

TIP 3: Litigation HoldsTIP 3: Litigation Holds A recent survey of in-house corporate legal A recent survey of in-house corporate legal

personnel found that “the relationship personnel found that “the relationship between legal and IT is improving between legal and IT is improving dramatically. 79% of the respondents dramatically. 79% of the respondents reported working ‘very close’ with IT, and reported working ‘very close’ with IT, and 61% noted that legal is often consulted when 61% noted that legal is often consulted when IT adopts a new technology” IT adopts a new technology”

From the Ari Kaplan Advisors Industry Research Report: A From the Ari Kaplan Advisors Industry Research Report: A Conversation with Corporate Counsel: e-Discovery Trends Conversation with Corporate Counsel: e-Discovery Trends and Perspectivesand Perspectives

TIP 4: Hire an IT ConsultantTIP 4: Hire an IT Consultant Front end costs are acceptableFront end costs are acceptable

You do not want to re-do any part of your You do not want to re-do any part of your production or find yourself embroiled in production or find yourself embroiled in motion practice about the technical motion practice about the technical aspects of your harvest and productionaspects of your harvest and production

TIP 4: Hire an IT ConsultantTIP 4: Hire an IT Consultant Get your IT consultant involved earlyGet your IT consultant involved early

Lawyers generally understand ESI but they Lawyers generally understand ESI but they are not specialists – Do not be fooledare not specialists – Do not be fooled

There is nothing legal about optical There is nothing legal about optical character recognition (“OCR”) files and character recognition (“OCR”) files and they don’t teach OCR 101 in law schoolthey don’t teach OCR 101 in law school

TIP 4: Hire an IT ConsultantTIP 4: Hire an IT Consultant Utilize your IT consultants.Utilize your IT consultants.

Involve your IT consultant in conferences Involve your IT consultant in conferences with opposing counsel regarding e-with opposing counsel regarding e-discovery discovery

TIP 5: Cost-Benefit AnalysisTIP 5: Cost-Benefit Analysis Not every case is e-discovery friendlyNot every case is e-discovery friendly Spending $300,000 to review and produce in Spending $300,000 to review and produce in

a matter with $400,000 in potential liability a matter with $400,000 in potential liability may not be appropriatemay not be appropriate

Consider this issue early on and obtain costs Consider this issue early on and obtain costs estimates estimates

Consider bringing this issue to the court’s Consider bringing this issue to the court’s attention and requesting reliefattention and requesting relief

TIP 6: Reasonably Accessible TIP 6: Reasonably Accessible ESIESI Under the Federal Rules of Civil Procedure, Under the Federal Rules of Civil Procedure,

you need not produce ESI that is not you need not produce ESI that is not reasonably accessiblereasonably accessible

Address this ahead of time and you can Address this ahead of time and you can better understand the scope of the better understand the scope of the productionproduction

Leave it for later and deal with motion Leave it for later and deal with motion practicepractice

TIP 7: Reviewing Your TIP 7: Reviewing Your ProductionProduction

Hard Copy vs. ElectronicHard Copy vs. Electronic Web Based Hosting vs. in House SoftwareWeb Based Hosting vs. in House Software

TIP 8: Remember How the TIP 8: Remember How the Case is WonCase is Won

Avoid the blunderbuss attackAvoid the blunderbuss attack More than ever, it is important to avoid More than ever, it is important to avoid

asking for everything asking for everything If you ask for it, you may just receive itIf you ask for it, you may just receive it You don’t need every e-mail and You don’t need every e-mail and

spreadsheetspreadsheet

TIP 8: Remember How the Case TIP 8: Remember How the Case is Wonis Won

Issue traditional discovery and educate Issue traditional discovery and educate yourself regarding your adversaries yourself regarding your adversaries electronic systemselectronic systems

Avoid the expense of fighting over what you Avoid the expense of fighting over what you just think your adversary possesses just think your adversary possesses

TIP 8: Remember How the Case TIP 8: Remember How the Case is Wonis Won

• Examples of traditional discovery regarding Examples of traditional discovery regarding ESI issues:ESI issues:– General Electronic DiscoveryGeneral Electronic Discovery

• Document Retention GuidelinesDocument Retention Guidelines– Network InfrastructureNetwork Infrastructure

• How it all works togetherHow it all works together– Internet Access and UsageInternet Access and Usage

• Activity and Usage MonitoringActivity and Usage Monitoring– Computers/ServersComputers/Servers– SoftwareSoftware

• What is in use and how it worksWhat is in use and how it works

TIP 8: Remember How the Case TIP 8: Remember How the Case is Wonis Won

• Examples...Examples...– Back-up SystemsBack-up Systems– Where it goes and for how longWhere it goes and for how long– E-mail, IM and other forms of e-communicationE-mail, IM and other forms of e-communication– TelephonyTelephony– Voice mailVoice mail– Remote Access/Home IssuesRemote Access/Home Issues– Mobile work placeMobile work place

TIP 9: Agreements to Narrow the TIP 9: Agreements to Narrow the ScopeScope Keyword SearchesKeyword Searches

De-DuplicationDe-Duplication The scope of requests for ESIThe scope of requests for ESI Method of ProductionMethod of Production

Native/.Tiff/.PdfNative/.Tiff/.Pdf Remember the pitfalls of eachRemember the pitfalls of each

Claw-back or quick-peek agreements Claw-back or quick-peek agreements Cost sharing for the preservation, retrieval and/or Cost sharing for the preservation, retrieval and/or

production of ESI, including any discovery database, production of ESI, including any discovery database, differentiating between ESI that is reasonably accessible differentiating between ESI that is reasonably accessible and ESI that is not reasonably accessibleand ESI that is not reasonably accessible

The need for any protective orders or confidentiality The need for any protective orders or confidentiality ordersorders

TIP 10: Production AuditsTIP 10: Production Audits

Do not fall prey to production issues:Do not fall prey to production issues: RedactionsRedactions MetadataMetadata Faulty production criteriaFaulty production criteria