In 2007 (the last year for which such statistics are available), North America's largest corporations reported that approximately 40 per cent of their total litigation budget was spent on e-discovery issues. Anecdotal evidence suggests that, for some organizations, litigation is becoming so expensive that organizations opt not to go to court and instead to just settle.
Most organizations, whether public or private, large or small, have no viable strategy for e-discovery. This reactive approach makes litigation cost-prohibitive, even for well-funded litigants. In order to reduce litigation costs, parties and their counsel must develop and execute a litigation plan that includes a measured, principled and constructive approach to e-discovery. Viewed this way, the use of litigation support professionals and techniques is essential to a comprehensive project management approach to litigation.
All organizations should take the following two steps now — before litigation arises — to prevent the costs of litigation and e-discovery from crippling or bankrupting them in the future:
- Be proactive, not reactive, about information management. Although the first step in the Electronic Discovery Reference Model (at EDRM.net) is "information management," most organizations do not have an information management or information governance plan. Rather, most organizations start organizing their information only after they receive an e-discovery request, and then are forced to start with some step in the middle of the process, usually collection. However, starting in the middle of a process means that e-discovery occurs in a chaotic environment, which increases costs.
- Prepare for when document reviews are structured, not linear, and performed as much by computers as persons. Organizations should prepare themselves for the time, in the near future, where it will be normal to randomly sample electronically stored information. Organizations that prepare to use and defend advanced methods of e-discovery in court are most likely to keep costs from spiralling out of control.
Currently, most reviews of electronic documents occur one-by-one, or in small batches, such as in e-mail strings. However, people now receive and send an average of 30,000 e-mails per year per person. With this kind of volume, linear review is not feasible. Throwing additional lawyers at a privilege and relevance review becomes too expensive, and outsourcing to low-cost document review lawyers only shifts, not solves, the cost problem. Most tools that are used permit 50 to 100 document decisions per hour per person. At that rate, one person, in a 40-hour week, makes decisions on 3,000 documents. In your average 1.5-million document case, the time and costs required to do this review can be very prohibitive.
Products that offer only keyword searches, no matter how robust, are insufficient to truly tackle an e-Discovery case. Technologies that can speed results include: text clustering (groups documents with common content), latent semantic indexing (interprets the meaning of what people have written), and sophisticated Bayesian statistical analysis (uses feedback from the human review to improve grouping results).
An e-Discovery professional, with a properly crafted project plan, can assist your organization in choosing an advanced structured review technique and the proper technology. Advanced e-Discovery techniques, such as sampling, become vital when manually reviewing every document is impossible. With sampling, e-discovery becomes as much about information retrieval as about law. Sophisticated statistical techniques, such as reviewing only representative samples of documents, can significantly reduce the work load. A sample size can be relatively small as long as it is properly randomized. However, the selector (and user) needs to understand the math involved.
Proper technology selection is also vital because some software can crack under the strain of large e-discovery cases. For example, database indexes can become corrupt, tags identifying documents can suddenly disappear, or, at best, the application might be slow to index.
However, expensive applications and statistical solutions are not the only choice. Sometimes, simple decisions can result in lower costs. For example, data format conversion can be expensive, so keeping the data in native format will almost always keep costs lower. This is particularly true where native file formats can be exchanged with the other side; producing natively, rather than in TIFF or PDF, can often reduce production costs by a factor of two- to five-fold.
An experienced litigation support professional, armed with a workable project plan, can provide organizations and their attorneys with effective options to manage an e-Discovery project, and can articulate strategies that dovetail with the litigation strategy while keeping costs under control. By proactively managing large data sets for an efficient e-discovery process, you will save yourself countless hours of law firm billing. And proper project execution may also increase your litigation lawyer's ability to prosecute your case to advantage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
