Pricing

Cost Calculator for Document Review – eDiscovery Best Practices

A couple of weeks ago, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site and, two days later, began a review of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.  Today, we will continue our review of the calculators with a look at the Doc Review Cost Calculator.

As described on the site, this budget calculator focuses on review, which is universally considered to be the most expensive phase of the eDiscovery process (by far). From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.

To use it, enter assumptions in the white and yellow cells in columns B, C, and D. Calculations are shown in columns D through T.

Assumptions that you can provide include: pages per document, low and high page counts in the collection, low and high time to complete the review project (in weeks) and reviewer hours per week, proposed rates for review (hourly and per document), low and high pages per hour rates for review (from which documents per hour rates are computed), proposed rates for review management (hourly and per document) and percentage of the collection to QC.

From the entered assumptions, the model will provide calculations to illustrate the low and high cost estimates for the low and high page count estimates, for both a per-document and a per-hour review billing structure.  It will also estimate a range of the number of reviewers needed to complete the project within the time frames specified, to help you plan on staffing necessary to meet proposed deadlines.  The detailed calculations are stored in a hidden sheet called “Calculations” – you can unhide it if you want to see how the review calculation “sausage” is made.

This model uses an “old school” assessment of a document collection based on page counts, so to use it with native file collections (where page counts aren’t known), you have to set the pages per document to 1 – your review rate then becomes documents (files) per hour.

Suggestions for improvement:

  • Some of the enterable assumption cells are in yellow and some in white (the same color as the computed cells), it would be easier and clearer to identify the assumptions fields if they were all yellow to differentiate them from the computed cells;
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a line or bar graph to the numbers to represent the differences graphically;
  • Provide some notes to explain some of the cells (especially the assumption cells) in more detail.

Nonetheless, this workbook would certainly be useful for estimating review costs and number of reviewers needed to complete a large scale review, not only at the start, but also to provide updated estimates as review commences, so you can adjust cost estimates and staffing needs as you go.  You can download this calculator individually or a zip file containing all four calculators here.  In a few days, we will continue our review of the current EDRM budget calculators in more detail with the ESI Cost Budget calculator from Browning Marean of DLA Piper law firm.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Vorys Project Ballpark Cost Estimator for ESI Processing and Review – eDiscovery Best Practices

On Tuesday, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  Today, we will begin a more in-depth discussion of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.

As described on the site, this budget calculator contains two worksheets. The Linear-search-analytics worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” and compare the results. The cases are:

  • Case 1: Full blown processing and linear review
  • Case 2: Search terms used to cull data during processing
  • Case 3: Use analytical culling tool

With each case, users are able to see the cost consequences that result from changing variables such as Data Volume, Volume after culling, and Pre-processing cost/GB.  The cost differences are shown numerically, as well as via two graphs, a 3D horizontal bar graph that shows the cost differences between the three cases (see above graphic for an example) and a 2D horizontal bar graph that shows the cost differences, with a breakdown of processing and review costs for each.

The Linear-size examples worksheet allows users to compare four versions of Case 1. Users are able to see the cost consequences (in both numeric and 2D vertical bar graph form) that result from changing any combination of six variables: Data Volume, Processing Cost/GB, Pages per GB, Docs Reviewed by Hour, Hourly Rate, and FTEs.

Both spreadsheets provide useful information and are well controlled to differentiate the data entry cells (with no fill color in the cell) from the calculation only cells (with a fill color) and the sheets are protected to prohibit accidental overwriting of the calculated cells (the sheets aren’t locked with a password, so you can override it if you want to make adjustments).  The sheet is designed to help you generate a ballpark cost for processing and review based on the variables provided, so it doesn’t include any fixed overhead costs such as software, hardware or facility costs.  It also doesn’t include any management overhead, so it’s essentially a model for variable costs only, but it could be useful to help you determine at what volume an analytical culling tool might pay for itself.

Suggestions for improvement:

  • Create a common section for data entry variables so you don’t have to re-enter them for each comparison case to save time and avoid data inconsistencies;
  • While you’re at it, add variables for pages per document and hours per week – right now, you have to unprotect the sheet and change the formulas if you want to change those variables (not all document sets or work weeks are the same);
  • Add sheets to compare versions of Case 2 and Case 3, like the sheet for Case 1.

Nonetheless, this workbook is quite useful if you want to obtain a ballpark estimate and comparison for processing and review and compare costs for alternatives.  You can download this calculator individually or a zip file containing all four calculators here.  After the first of the year, we will continue our review of the current EDRM budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Want to Estimate your eDiscovery Budget? Use One of These Calculators – eDiscovery Best Practices

It has been a busy year for the Electronic Discovery Reference Model (EDRM).  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  Now, another resource is available via the EDRM site – Budget Calculators!

It can be difficult to estimate the total costs for eDiscovery at the outset of a case.  There are a number of variables and options that could impact the budget by a wide margin and it may be difficult to compare costs for various options for processing and review.  However, thanks to the EDRM Metrics team and contributing members, budget calculator Excel workbooks are available to enable you to at least “ballpark” the costs.  The budget calculator spreadsheets are designed to help organizations estimate likely eDiscovery costs, based on assumptions that you provide, such as average hourly rates for contract reviewers or average number of pages per document.

There are four budget calculators that are currently available.  They are:

  • UF LAW E-Discovery Project Ballpark Cost Estimator for ESI Processing and Review: This budget calculator contains two worksheets. The first worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” (Full blown processing and linear review, Search terms used to cull data during processing and Use analytical culling tool) and compare the results.  The second worksheet allows users to compare four versions of Case 1.  This workbook has been provided by University of Florida Levin College of Law and Vorys law firm.
  • Doc Review Cost Calculator: This budget calculator focuses on review. From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.
  • ESI Cost Budget: This budget calculator estimates costs by project phase. The phases are: ESI Collection, ESI Processing, Paper Collection and Processing, Document Review, Early Data Assessment, Phase 1 Review, Phase 2 Review, Production, Privilege Review, Review of Opposition’s Production and Hosting Costs.  This workbook has been provided by Browning Marean, DLA Piper law firm.
  • EDRM UTBMS eDiscovery Code Set Calculator: This budget calculator uses the UTBMS e-discovery codes as a starting point for calculating estimated e-discovery expenses. Users enter anticipated average hour rates for: Partners, Associates, Paralegals, Contract reviewers, In-house resources and Vendors, along with total estimated hours for each relevant group and total estimated associated disbursements for each relevant L600-series UTMBS code.  The spreadsheet then displays: a summary of the estimated costs, details of the estimated costs for each combination, totals by type of person and totals by individual and higher-level UTMBS codes.  This workbook has been provided by Browning Marean, DLA Piper law firm; and George Socha, Socha Consulting.

You can download each calculator individually or a zip file containing all four calculators.  If you have your own budget calculator, you can also submit yours to EDRM to share with others.  The calculators are available here.  On Thursday, we will begin reviewing the current budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Published less than two months ago in September, this post quickly vaulted to the top as the most viewed post of all time with over 1,400 lifetime views!  I guess the nerve of the plaintiff’s lead counsel struck a nerve with our readers!  Enjoy!

______________________________

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Are You Scared Yet? – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  So, I have one question: Are you scared yet?

Did you know that there has been over 3.4 sextillion bytes created in the Digital Universe since the beginning of the year, and data in the world will grow nearly three times as much from 2012 to 2017?  How do you handle your own growing universe of data?

What about this?

The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466.

How about this?

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Or maybe this?

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!

Scary, huh?  If the possibility of exponential data growth, vendors holding data hostage and billable review rates of $466 per hour keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Case Law

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

How Big is Your ESI Collection, Really? – eDiscovery Best Practices

When I was at ILTA last week, this topic came up in a discussion with a colleague during the show, so I thought it would be good to revisit here.

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians.  You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel.  After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!  Are they trying to overbill you?

Yes and no.

Many of the files in most ESI collections are stored in what are known as “archive” or “container” files.  For example, while Outlook emails can be stored in different file formats, they are typically collected from each custodian and saved in a personal storage (.PST) file format, which is an expanding container file. The scanned size for the PST file is the size of the file on disk.

Did you ever see one of those vacuum bags that you store clothes in and then suck all the air out so that the clothes won’t take as much space?  The PST file is like one of those vacuum bags – it often stores the emails and attachments in a compressed format to save space.  There are other types of archive container files that compress the contents – .ZIP and .RAR files are two examples of compressed container files.  These files are often used to not only to compress files for storage on hard drives, but they are also used to compact or group a set of files when transmitting them, often in email.  With email comprising a major portion of most ESI collections and the popularity of other archive container files for compressing file collections, the expanded size of your collection may be considerably larger than it appears when stored on disk.

When PST, ZIP, RAR or other compressed file formats are processed for loading into a review tool, they are expanded into their normal size.  This expanded size can be 1.5 to 2 times larger than the scanned size (or more).  And, that’s what some vendors will bill processing on – the expanded size.  In those cases, you won’t know what the processing costs will be until the data is expanded since it’s difficult to determine until processing is complete.

It’s important to be prepared for that and know your options when processing that data.  Make sure your vendor selection criteria includes questions about how processing is billed, on the scanned or expanded size.  Some vendors (like the company I work for, CloudNine Discovery), do bill based on the scanned size of the collection for processing, so shop around to make sure you’re getting the best deal from your vendor.

So, what do you think?  Have you ever been surprised by processing costs of your ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

200,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we may be “just a bit behind” Google in popularity (900 million visits per month), we’re proud to announce that yesterday eDiscoveryDaily reached the 200,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 11 months to get to 200,000 (don’t tell my boss, he’ll expect 300,000 in 5 1/2 months).  When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so here are some recent eDiscovery items of interest.

EDRM Data Set “Controversy”: Including last Friday, we have covered the discussion related to the presence of personally-identifiable information (PII) data (including social security numbers, credit card numbers, dates of birth, home addresses and phone numbers) within the Electronic Discovery Reference Model (EDRM) Enron Data Set and the “controversy” regarding the effort to clean it up (additional posts here and here).

Minnesota Implements Changes to eDiscovery Rules: States continue to be busy with changes to eDiscovery rules. One such state is Minnesota, which has amending its rules to emphasize proportionality, collaboration, and informality in the discovery process.

Changes to Federal eDiscovery Rules Could Be Coming Within a Year: Another major set of amendments to the discovery provisions of the Federal Rules of Civil Procedure is getting closer and could be adopted within the year.  The United States Courts’ Advisory Committee on Civil Rules voted in April to send a slate of proposed amendments up the rulemaking chain, to its Standing Committee on Rules of Practice and Procedure, with a recommendation that the proposals be approved for publication and public comment later this year.

I Tell Ya, Information Governance Gets No Respect: A new report from 451 Research has indicated that “although lawyers are bullish about the prospects of information governance to reduce litigation risks, executives, and staff of small and midsize businesses, are bearish and ‘may not be placing a high priority’ on the legal and regulatory needs for litigation or government investigation.”

Is it Time to Ditch the Per Hour Model for Document Review?: Some of the recent stories involving alleged overbilling by law firms for legal work – much of it for document review – begs the question whether it’s time to ditch the per hour model for document review in place of a per document rate for review?

Fulbright’s Litigation Trends Survey Shows Increased Litigation, Mobile Device Collection: According to Fulbright’s 9th Annual Litigation Trends Survey released last month, companies in the United States and United Kingdom continue to deal with, and spend more on litigation.  From an eDiscovery standpoint, the survey showed an increase in requirements to preserve and collect data from employee mobile devices, a high reliance on self-preservation to fulfill preservation obligations and a decent percentage of organizations using technology assisted review.

We also covered Craig Ball’s Eight Tips to Quash the Cost of E-Discovery (here and here) and interviewed Adam Losey, the editor of IT-Lex.org (here and here).

Jane Gennarelli has continued her terrific series on Litigation 101 for eDiscovery Tech Professionals – 32 posts so far, here is the latest.

We’ve also had 15 posts about case law, just in the last 2 months (and 214 overall!).  Here is a link to our case law posts.

On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 32+ months, thanks to all of you who read the blog every day!  In addition, thanks to the other publications that have picked up and either linked to or republished our posts!  We really appreciate the support!  Now, on to 300,000!

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Four More Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

Thursday, we covered the first four tips from Craig Ball’s informative post on his blog (Ball in your Court) entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  Today, we’ll discuss the last four tips.

5. Test your Methods and Know your ESI: Craig says that “Staggering sums are spent in e-discovery to collect and review data that would never have been collected if only someone had run a small scale test before deploying an enterprise search”.  Knowing your ESI will, as Craig notes, “narrow the scope of collection and review with consequent cost savings”.  In one of the posts on our very first day of the blog, I relayed an actual example from a client regarding a search that included a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  Because there are 269 words in the English language that begin with “min”, that overly broad search retrieved over 300,000 files with hits in an enterprise-wide search.  Unfortunately, the client had already agreed to the search term before finding that out, which resulted in considerable negotiation (and embarrassment) to get the other side to agree to modify the term.  That’s why it’s always a good idea to test your searches before the meet and confer.  The better you know your ESI, the more you save.

6. Use Good Tools: Craig provides another great analogy in observing that “If you needed to dig a big hole, you wouldn’t use a teaspoon, nor would you hire a hundred people with teaspoons.  You’d use the right power tool and a skilled operator.”  Collection and review tools must fit your requirements and workflow, so, guess what?  You need to understand those requirements and your workflow to pick the right tool.  If you’re putting together a wooden table, you don’t have to learn how to operate a blowtorch if all you need is a hammer and some nails, or a screwdriver and some screws for the job.  The better that the tools fit your workflow, the more you save.

7. Communicate and Cooperate: Craig says that “Much of the waste in e-discovery grows out of apprehension and uncertainty.  Litigants often over-collect and over-review, preferring to spend more than necessary instead of giving the transparency needed to secure a crucial concession on scope or methodology”.  A big part of communication and cooperation, at least in Federal cases, is the Rule 26(f) conference (which is also known as the “meet and confer”, here are two posts on the subject).  The more straightforward you make discovery through communication and cooperation, the more you save.

8. Price is What the Seller Accepts: Craig notes that there is much “pliant pricing” for eDiscovery tools and services and relayed an example where a vendor initially quoted $43.5 million to complete a large expedited project, only to drop that quote all the way down to $3.5 million after some haggling.  Yes, it’s important to shop around.  It’s also important to be able to know the costs going in, through predictable pricing.  If you have 10 gigabytes or 1 terabyte of data, providers should be able to tell you exactly what it will cost to collect, process, load and host that data.  And, it’s always good if the provider will let you try their tools for free, on your actual data, so you know whether those tools are worth the price.  The more predictable price and value of the tools and services are, the more you save.

So, what do you think?  What are you doing to keep eDiscovery costs down?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Eight Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

By now, Craig Ball needs no introduction our readers as he has been a thought leader interview participant for the past three years.  Two years ago, we published his interview in a single post, his interview last year was split into a two part series and this year’s interview was split into a three part series.  Perhaps next year, I will be lucky enough to interview him for an hour and we can simply have a five-part “Ball Week” (like the Discovery Channel has “Shark Week”).  Hmmm…

Regardless, I’m a regular reader of his blog, Ball in your Court, as well, and, last week, he published a very informative post entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  I thought we would cover those tips here, with some commentary:

  1. Eliminate Waste: Craig notes that “irrational fears [that] flow from lack of familiarity with systems, tools and techniques that achieve better outcomes at lower cost” results in waste.  Over-preservation and over-collection of ESI, conversion of ESI, failing to deduplicate and reviewing unnecessary files all drive the cost up.  Last September, we ran a post regarding quality control and making sure the numbers add up when you subtract filtered, NIST/system, exception, duplicate and culled (during searching) files from the collected total.  In that somewhat hypothetical example based on Enron data sets, after removing those files, only 17% of the collected files were actually reviewed (which, in many cases, would still be too high a percentage).  The less number of files that require attorney “eyes on”, the more you save.
  2. Reduce Redundancy and Fragmentation: While, according to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months, Craig points out that “human beings don’t create that much more unique information; they mostly make more copies of the same information and break it into smaller pieces.”  Insanity is doing the same thing over and over and expecting different results and insane review is reviewing the same documents over and over and (potentially) getting different results, which is not only inefficient, but could lead to inconsistencies and even inadvertent disclosures.  Most collections not only contain exact duplicates in the exact format (which can identified through hash-based deduplication), but also “near” duplicates that include the same content in different file formats (and at different sizes) or portions of the content in eMail threads.  The less duplicative content that requires review, the more you save.
  3. Don’t Convert ESI: In addition to noting the pitfalls of converting ESI to page-like image formats like TIFF, Craig also wrote a post about it, entitled Are They Trying to Screw Me? (discussed in this blog here).  ‘Nuff said.  The less ESI you convert, the more you save.
  4. Review Rationally: Craig discussed a couple of irrational approaches to review, including reviewing attachments without hits when the eMail has been determined to be non-responsive and the tendency to “treat information in any form from any source as requiring privilege review when even a dollop of thought would make clear that not all forms or sources of ESI are created equal when it comes to their potential to hold privileged content”.  For the latter, he advocates using technology to “isolate privileged content” as well as clawback agreements and Federal Rule of Evidence 502 for protection against inadvertent disclosure.  It’s also important to be able to adjust during the review process if certain groups of documents are identified as needing to be excluded or handled differently, such as the “All Rights Reserved” documents that I previously referenced in the “oil” AND “rights” search example.  The more intelligent the review process, the more you save.

There is too much to say about these eight tips to limit to one blog post, so on Monday (after the Good Friday holiday) we’ll cover tips 5 through 8.  The waiting is the hardest part.

So, what do you think?  What are you doing to keep eDiscovery costs down?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.