1 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 - Houston Wright Consulting LLC - Houston Formerly: Formerly: Director - Electronic Evidence Consulting - FTI Director - Electronic Evidence Consulting - FTI Consulting, Inc. Consulting, Inc. Director of E-Discovery - Halliburton Director of E-Discovery - Halliburton
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 Presentation
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Cost Management in E-Discovery
Identifying and Taking Advantage of the Opportunities for Cost Management in
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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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
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.]
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
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
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-