COMMENTARY: Saving secrets--How to cut costs on electronic discovery

By Mark St. Peter The lion's share of all information comes in digital ones and zeros instead of literal paper documents. As much as 97 percent of all information is electronic and the vast majority of documents are now created, archived and transmitted electronically. Plumbing those digital depths and navigating those virtual filing cabinets has become an increasingly important task that demands an increasingly specialized skillset. When it comes to litigation and the all-important evidentiary exchange known as the discovery process, that skillset is in high demand. Today, electronic discovery is critically important, as it becomes increasingly clear that the preservation, collection, recovery and management of digital files are crucial to obtaining a successful outcome in litigation. Whether it is e-mails, word processing documents, spreadsheets, project plans, presentations, encrypted files, backup tapes or even deleted files, law firms rely heavily on electronic discovery experts with the experience and technical expertise necessary to identity, inventory, copy, produce, manage, and--if necessary--recover and reconstruct digital information for the firm's clients. With courts continuing to establish more detailed standards for digital evidence and taking closer looks at cases of electronic discovery abuse, the central role played by experts in electronically stored information (ESI) is only going to grow. Frustratingly, for all of the technical hurdles and regulatory and procedural complexities, one of the biggest barriers to the management and utilization of ESI is money--specifically a lack of money. What many firms are discovering to their chagrin is that electronic discovery can be enormously complex, time consuming, and a subsequently costly task. Oftentimes, faced with the inherent uncertainties of new digital frontiers and evolving legal and technical landscapes, it is not clear when and how to contain those costs. Fortunately, however, there are ways that those electronic discovery bills can be minimized. What follows is a brief overview of the electronic discovery process, including the priorities and procedures that can influence cost containment decisions, and some of the best ways for law firms to avoid unnecessary expenses while maximizing their electronic discovery value. Generally speaking, the most significant cost containment opportunities for law firms are not found in the technical complexities of the search process, but in the common-sense basics and fundamentals that define the law firm-ESI vendor relationship. The details of each case are different, and the technical and evidentiary demands of every discovery will change, but there are consistent ways to maximize value and save on the electronic discovery process: Rely on the experts Perhaps ironically, one of the most important ways to save money on electronic discovery is to not make the mistake of trying to save too much money. Electronic evidence collection needs to be done by ESI professionals. Do not fall prey to the misconception that IT departments can handle the task. The potential downsides to a search performed by someone not experienced in the legal and technical intricacies of electronic discovery far outweigh the potential savings. IT departments are not able to correctly collect data because of the lack of proper equipment and time, and they alter evidence unintentionally without the safeguards used during a proper forensic collection. Both of those outcomes can become far more costly and damaging to your case and to your expense account. Not only is third-party tracking and data collection favored by the courts, it is also the best way to avoid costly liabilities and protect against damaging sanctions such as monetary penalties, adverse jury instructions, or even dismissal. Collect and preserve early Even though the electronic discovery process can be expensive, one of the least costly stages and, coincidentally, the most crucial, is the preservation of electronic data. Collect and preserve your data as early in the litigation process as possible and don't be afraid to be overly inclusive. Just because you preserve a certain quantity of data does not mean that you will have to process or search all of it--you will appreciate this if and when, during your case, you discover additional sources of information and you'll be glad that you preserved all of it. Systems, software and personnel can act on your client's data to alter it or delete it over time and you need to act before you irretrievably or inadvertently lose important evidence. Target your searches One of the most effective ways to ensure a cost-effective electronic discovery process is to establish parameters that will lead to tailored and relevant searches. The best searches are targeted searches, and the best way to establish a refined and defined target area while still casting a sufficiently wide net is to use data to set search limits. Date filters can avoid the unnecessary and wasteful expense of sifting through collected data that does not fall within the timeframe relevant to the case at hand, and enable ESI professionals to conduct an efficient and timely search. Be aware of other criteria that may help to limit the scope of the search, including personnel, types of information, legal goals and key words. Also consider the types of files that will be searched. There is no sense spending money processing system files, audio files or graphic files for a text-based search. Make sure your vendor has ways to segregate the different types of files present in your collection and think carefully about which file types are likely to elicit relevant, discoverable information. Ask the right questions Do not be afraid to ask important questions of your ESI expert, or to rely on their expertise to help you determine the best discovery strategy and to weigh the risks and benefits of different discovery scenarios. Consider how much data needs to be preserved, collected and processed, ask what collection methods will be used (some are more comprehensive and correspondingly more expensive), and what format the recovered data will be presented in. Make sure that any file conversions and other data management decisions are selected strategically and with cost control in mind. Use the right tool for the task at hand Electronic discovery experts have a surprising array of hardware and software tools at their disposal as well as a variety of techniques. Some processes are most costly than others. Make sure that you work with your expert to pinpoint the most cost effective approach to your discovery goals. It is important to avoid overkill and to choose methods that are proportionate to your data population, your budget and the circumstances of your case. Share and share alike Make sure that you are sharing knowledge effectively and working closely and productively with your ESI specialist. Meet early and often to explain the goals of the case and the goals of the search. Experienced vendors who know what to look for can save potentially significant amounts of time and money and deliver a more efficient level of service if they are able to avoid processing or searching large amounts of irrelevant information and focus exclusively on material that is truly important. Run the numbers It may seem intuitive, but it is surprising how often electronic discovery is performed with little to no regard for the financial realities of the client and the case at hand. Make sure your discovery efforts are commensurate with the potential financial rewards and/or penalties of the case: perform a basic cost analysis of the entire discovery process, calibrating your efforts and working with ESI professionals accordingly. In other words, if you are litigating a $100,000 dispute, it makes little sense to spend $75,000 on electronic discovery. By following these simple steps, it is possible to minimize costs on electronic discovery and still achieve the desired end results-a successful litigation process that doesn't come with unwarranted and costly surprises. By working with a trusted expert partner, attorneys can ensure that they are navigating this process with both empowering knowledge and confidence. ---------------- Mark St. Peter is managing director of Southfield-based Computing Source. To learn more about Computing Source, visit computingsource.com. Published: Fri, Jun 8, 2012