Our Insights on eDiscovery

Yesterday, Law Technology News (LTN) published an article entitled E-Discovery Certification: Sham Exams?, by Patrick Oot, which questioned the validity of several of the eDiscovery certification programs that, in their words, are “sprouting up faster than dandelions in May grass”. As you can imagine, the article did not go over swimmingly with organizations that sponsor eDiscovery certification programs. One of those is The Organization of Legal Professionals (OLP). Chere Estrin is the Chairperson of the Board of Directors of the OLP. Yesterday, I interviewed her regarding the LTN article and the OLP certification program. Here is the interview.

Friday, we talked about the information you should include in a request for proposal for processing a paper discovery collection. Today we’ll review some questions you should ask of a service provider to help you to select the provider that’s the best fit for your case. Of course, you’ll ask for pricing information, if the vendor can meet your schedule requirements, and for references. In addition, here are questions to ask and information to request.

For several years now, the focus of our discovery efforts has been handling ESI. Paper, however, hasn’t gone away yet. And it probably won’t any time soon. People still have at least small collections of paper that need to be handled. What’s the best way to handle paper? Convert it ASAP and blend it into the rest of the collection so attorneys can do a comprehensive review of the entire universe of potentially responsive documents. That means scanning, coding, and OCR processing to enable the paper to reviewed and searched. Here’s information the vendor will need to give you accurate cost and schedule information for handling the paper portion of your collection.

We’ve spent some time in Part 1 and Part 2 of this series discussing the factors and assumptions that go into eDiscovery budgeting, but what about the concrete eDiscovery process itself? In addition to understanding the factors that go into budgeting, it’s important to recognize the elements that contribute to eDiscovery costs. There are five primary factors that contribute to the costs of eDiscovery in progress.

According to The Independent, staff at Rupert Murdoch’s newspapers has been warned to stop deleting any documents that may be relevant to the current investigations, as a suspension of its usual policy about deletion of documents goes into effect. Over the course of the 2011 investigation into illegal voicemail hacking by News International employees, there has been contention over the ongoing deletion of documents at the newspaper and its subsidiaries. But only during this past weekend did News International’s parent company, News Corp, finally send an email to all of its employees instructing them to take measures preventing the deletion of documents that might be related to the investigation, including emails and other ESI.

Friday, we talked about assumptions and elements that contribute to cost that need to be considered when budgeting for eDiscovery activities. Now that you know a bit about the factors surrounding the cost of eDiscovery, let’s take a look at budgeting and the estimates that attorneys provide to a client before beginning eDiscovery work. The first step in budgeting is to prepare an estimate based on your and your client’s best guesses and assumptions. What are some of these assumptions?

While attorneys may struggle with the regional and international regulations surrounding eDiscovery, your client is likely to be less concerned with the practical legal details of your discovery request, and more concerned with the financial cost. Whether you’re working with the plaintiff or the defense, one of the most important considerations in preparing for eDiscovery is presenting the expense accurately and completely to the client – and that means understanding for yourself the factors that go into budgeting for eDiscovery.

Over the past few weeks, we’ve discovered several challenges associated with international eDiscovery. In the course of pursuing discovery requests in foreign nations, US lawyers also often run into another serious legal snag: blocking statutes. These statutes prevent certain types of information from leaving the country where it originates, and can interfere with discovery of evidence in a number of ways.