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.

First, overcollection is, in part, caused by bad habits from the days of old, when document discovery was paper-based. Out would go the request for production of any and all documents “related to, about, or concerning” a particular topic, person, or issue in the litigation. The producing party would then gather “all” the potentially relevant documents, and those collected documents would be reviewed, redacted, stamped, and produced. This recipe from an increasingly distant era cooks up a mess in the ESI world. In an electronic world, no longer are relevant documents neatly stored as paper reports, memoranda, and correspondence in files or neatly labeled file folders and cabinets. Now, electronically stored and relevant information is jumbled and disorganized, and often haphazardly dropped into a number of storage locations. When you start collecting these entire locations to sequester and corral the relevant ESI, the volume of collected data becomes enormous while the percentage of relevant documents simultaneously dwindles. The rest is often the horrifying cost associated with tales of e-discovery gone wrong.

The second cause of overcollection stems from the fear of sanctions because of missing documents in the production. No one wants to experience the revelation, halfway or fully through the discovery process, that some important documents were not produced, and now the whole process must start over, at their expense. This fear of “missing documents” has been fueled in large part by disasters of custodian (witness) self-collection — few things lead to more trouble in e-discovery than custodians mucking around in their own data, trying to decide as non-lawyers what is relevant, altering metadata and documents by opening and moving files, and intentionally or negligently doing a poor collection job. Most employees are not trained in self-collection and view litigation as a distraction from operational concerns and responsibilities, and why would they worry anyway? Most employees do not have, in their annual reviews, a category for evaluating how well they performed the self-collection on documents for litigation.

The third cause of overcollection is simply the fear of data and software tools, endemic to a species I call the dataphobiac. Because internal self-collection is rightly frowned upon, the all-too-common reaction is to avoid dealing with the data at all and to retain outside forensics experts to harvest bit-stream complete copies of the hard drives of every possible custodian and location. This results in collections that on average contain 90% or more irrelevant information. This massive collection of junk, garbage, and irrelevant data must then be culled by deNISTing (removing the non-human created system files), de-duplication, and near de-duplication (identifying the copies and near copies), and then engaging in a search, analysis, and refining process using more or less sophisticated technologies ranging from key word searches to clustering and grouping, to email threading, to predictive analytics, and then it all needs to be reviewed. With such an approach, no wonder e-discovery has become dreaded as a budget buster with little value.

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.

Huge efficiencies are immediately accomplished through this process. Not only is relevant data identified and moved to the external drive for analysis, but the interviewing counsel learns about the case in an informed manner by talking to the custodian about how the custodian created, received, stored, and published data relevant to the litigation, all while viewing the custodian’s computer with the custodian. This process allows the retained counsel to get a concrete and specific feel for the witness and the location of important information, which also facilitates an accurate earlier case evaluation.

Of course, having retained counsel travel to the custodian can still be expensive and intrusive … but why do that? We live in the Internet Age! Now, the retained counsel can ship the preconfigured drive and connect to the custodian and his or her computer from the law office or other remote location, using any number of very handy and staggeringly inexpensive screen-sharing applications—the retained counsel can thus view (and can control) the custodian computer as though he or she is sitting at the witness’s side. Thus, retained counsel and the custodian witness meet online talk about the case, and collect only what is necessary. Once the data is copied to the pre-configured hard drive, the hard drive is appropriately labeled to create a chain of custody, encrypted, and shipped back to the lawyer by commercial courier. Other than the shipping of the hard drive, the entire process is accomplished over the Internet. Actually the copying process could be accomplished entirely over the Internet, but utilizing a connected external drive allows for quicker transfer speeds and minimizes “hiccups” over an Internet connection.

Ah, the joy of cutting significant costs while improving the quality of the discovery process. Indeed, supervised forensic activity collection creates savings on top of savings: retained counseling quickly begins to learn about the case; the interview process is effective, and the collection is streamlined; the metadata is preserved; a defensible collection record, log, and hash values are automatically created; and therefore retained counsel and expert fees are reduced.

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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