E-discovery: Not as expensive as old habits

Delusions of the “good-old-days” may cause blindness to new methods and technologies

Remember “the good-old days,” when in retrospect the cost of document production was “modest” and of little object? Today, the litigation world is different. Electronically stored information has exploded production costs. But maybe the problem is not so much technology but our antediluvian habits from the “good-old-days” and blindness to new methods and technologies.

For example, a huge litigation cost driver is e-discovery overcollection, but overcollection has three throwback causes and at least one neat modern solution. First, overcollection is first caused by the residue of discovery habits from the paper era; second, overcollection is caused by an irrational yet time-honored fear of sanctions; and third, overcollection is driven by an old-fashioned fear of data and software, prevalent among litigators. This is a potent, perfect storm that needs to be neutralized early in any case. The good news, discussed below, is that we now have a handy solution. But first, more on how we got to this deplorable state.

However, help has arrived! There is a middle ground between self-collection and forensic bit stream collection of entire drives. We can forensically collect only the active data needed from the key custodians, in a manner that preserves the file metadata. This may sound like a magic trick, but the technology is readily available and easy to learn and deploy, and Federal Rule of Civil Procedure 26(b)(2)(C)(iii) limits electronic discovery to what is proportional to the case.

Here’s how it works: The custodian is sent a pre-configured remote drive, to be attached to the custodian’s computer by a USB or other connection. The retained attorneys responsible for the collection then interview the custodian about the case facts and issues, and all custodian’s data locations (e.g., an email folder). Based on that interview, relevant files are moved to the remote drive connected to the computer while preserving metadata and creating a legally defensible log.

Contributing Author

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William F. Hamilton

William "Bill"Hamilton, a partner at Quarles & Brady LLP, is board certified in business litigation by The Florida Bar. His work includes complex business litigation...

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