Optimizing Every Step of eDiscovery: Right-sizing your litigation budget
- July 24, 2018
- by Ivette Basterrechea
Whether you handle small contract disputes or large, complex litigation, at some point, you are likely to receive an invoice for eDiscovery services. This may come to you as an attorney directly handling a litigation budget or as an outside counsel working with a client. You all may experience some sticker shock or you may have already been expecting the worst. Inevitably, regardless of your situation, everyone will ask: “Where is all of this money going?”
By now, the eDiscovery process has evolved to the point where any matter will follow a standard lifecycle of costs. These are basic services that you will almost always need and simple strategies for controlling or decreasing your costs.
Collection takes time and resources (i.e., money) to figure out what data you need and how to acquire it. Can you rely on internal personnel to perform a defensible, forensic collection of email and documents stored on a network? Would they be able to handle these responsibilities with advice and assistance from your eDiscovery provider? Worst case scenario: do you need to hire a collection expert to ensure that the data is collected in a defensible matter in order to avoid spoliation? Collection service providers are going to be the priciest option because you will be paying for their professional expertise and expenses.
But traditional TAR 1.0 also has drawbacks, chief among them the need to review randomly selected sample document sets or seed sets, and to do so multiple times. These sample sets sometimes include documents with low value (e.g., vague text or text unrelated to any other documents), and that means you need to perform multiple iterations of these sample reviews to achieve the desired accuracy. The use of randomly selected samples also means that human reviewers don’t have the opportunity to provide feedback to the machine learning models by introducing documents of higher value that are outside of the prescribed samples. And in fact, a chief complaint from users of TAR 1.0 is that it takes too many iterations and, ultimately, too much time to reach targets for accuracy.
Use internal resources as much as possible without sacrificing the integrity of your data. This could call for some frank conversations so you do not underestimate or overestimate resources.
Once you have collected the data it needs to be processed into an efficiently reviewable format. Costs will vary widely here because there are several pricing models employed by different service providers: by GB (i.e., size), flat fee or bundled (e.g., with hosting, production, etc.).
Any shortcuts in processing – excluding certain large file types, for example — could result in cost savings but might also lead to additional processing down the road. While not a bad strategy, decisions should be made carefully. Pool your data as much as possible before sending it out for processing if you are being charged technical time for this service. Sending a few GB each day instead of once a week will inflate your technical time costs. Depending on how data is being processed, a small load can take as much time as a large load.
The amount of data collected and subsequently processed impacts your final hosting size. Hosting may well end up being one of your largest, long-term costs. Data hosting is necessary to have a document review platform which you will undoubtedly need to get through your document collection efficiently. Pricing models will either break this cost out as a line item based on size or may bundle it with other services. Either way, hosting will be a part of your ongoing eDiscovery costs.
Use service providers with the capacity to let you perform Early Case Assessment (ECA). Look for ways to cull data from review as much as possible, based on criteria such as date range, email domains, file types or search terms. The goal is to reduce your data in ECA, remove it from hosting and only place what could be potentially responsive into review for long-term hosting.
During the course of your document review, where you will be spending the majority of your time on the case, you will start to incur professional services: technical, project management, legal (contract attorneys vs. firm/in-house lawyers). Professional services are usually priced hourly unless they are bundled into an all-in pricing model or flat fee. The hourly rates can vary, but the quantity of hours can be a major concern as the amount needed to complete your discovery is largely unpredictable.
Try to remove some people from the equation. Is there an in-house team that could manage the document review? Can you use smart tools in your review platform (without adding extra costs) such as Technology Assisted Review (TAR) to prioritize or reduce your review set? Use providers that do not charge user fees for reviewers. If you do end up needing a large team, that is one cost variable you will not need to consider.
There are variable costs here primarily linked to chosen production format. For example, do you want your production images in color or will black and white suffice? It is common knowledge that color files are surprisingly larger than black and white. Larger data equals larger hosting size and thus likely increased costs. Pricing model will also be a factor here. Consider whether you are being charged by page, by production data size or technical time.
Design your production plan around your pricing model. Rolling productions are fine to manage monthly bills (i.e., charges spread out across several invoices) if you are billed per page or volume size. If you are paying for technical time, follow the advice for pooling processing requests (i.e., no producing one document per day, if at all possible).
Even after discovery has closed, you will likely need to keep your documents accessible until the matter has been completely resolved. This means you will continue to incur hosting costs and potentially some professional services as well. At this point, you should consider how long you need to keep your documents online and how you will need to use them. You may be able to pare down the data being hosted.
There are actually many clients who let their data sit and incur hosting costs even after they stop needing access to it. It is possible to archive document collections in formats that can easily be restored to your document review platform if needed. That may be the end of your hosting costs.
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In summary, think about cost savings in terms of data size and professional services. Wherever you can minimize these factors, it is wise to do so. Unfortunately, not all matters lend themselves to careful budgeting and the use of cost-saving strategies. There may be factors out of your control that inevitably inflate your discovery budget halfway through your case (e.g., going from 50 custodians to 300). If you have done a thoughtful selection of an eDiscovery provider, you will be in the best position to deal with such situations. Along the way, do not hesitate to ask your provider for help managing your costs. They should be creative and even pro-active in doing so. After all, they want you to send that next 300 custodian matter to them!