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Kleen-ing up e-discovery

What Judge Nolan’s upcoming decision in the Kleen Products case could mean for the gold standard of e-discovery

When it comes to litigation, the e-discovery tail is wagging the litigation dog. More than wagging, the tail is throwing the dog around like a judo master. Discovery costs represent a greater percentage of litigation budgets than anyone foresaw 20 years ago, greater than any other litigation cost, by far. The increase in budgets is directly related to the overwhelming volume of information that corporations create. We have gone from the megabyte era to the gigabyte era, skipped the terabyte era, and we’re now firmly in the petabyte era.

Our ability to put human eyes on all documents that need to be reviewed is limited by petabyte math: number of available reviewers multiplied by the number of available hours multiplied by the number of documents per hour per reviewer. But the numbers don’t add up. There are just too many documents, and we’ve reached the mathematical limit of human review. More than reached it, we’ve blown past it with nary a rearward glance. To give one recent example, a company under investigation disclosed over 300 million emails to its regulator. If every employee of the regulator—from the director down to the janitor—did nothing but review emails, every day, all day, it would take them more than four years to read them.

Contributing Author

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Howard Sklar

Howard Sklar is senior corporate counsel at Recommind, Inc. Prior to joining Recommind, Howard headed anti-corruption and compliance programs at American Express and Hewlett-Packard. He...

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