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eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers
 

The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations.  To obtain either a paperback copy or download a free eBook of the report, click here.

For the study, the authors requested case-study data from eight Fortune 200 companies and obtained data for 57 large-volume eDiscovery productions (from both traditional lawsuits and regulatory investigations) as well as information from extensive interviews with key legal personnel from the participating companies.  Here are some of the key findings from the research:

  • Review Makes Up the Largest Percentage of eDiscovery Production Costs: By a whopping amount, the major cost component in their cases was the review of documents for relevance, responsiveness, and privilege (typically about 73 percent). Collection, on the other hand, only constituted about 8 percent of expenditures for the cases in the study, while processing costs constituted about 19 percent in the cases.  It costs about $14,000 to review each gigabyte and $20,000 in total production costs for each gigabyte (click here for a previous study on per gigabyte costs).  Review costs would have to be reduced by about 75% in order to make those costs comparable to processing, the next highest component.
  • Outside Counsel Makes Up the Largest Percentage of eDiscovery Expenditures: Again, by a whopping amount, the major cost component was expenditures for outside counsel services, which constituted about 70 percent of total eDiscovery production costs.  Vendor expenditures were around 26 percent.  Internal expenditures, even with adjustments made for underreporting, were generally around 4 percent of the total.  So, almost all eDiscovery expenditures are outsourced in one way or another.
  • If Conducted in the Traditional Manner, Review Costs Are Difficult to Reduce Significantly: Rates currently paid to “project attorneys during large-scale reviews in the US may well have bottomed out” and foreign review teams are often not a viable option due to “issues related to information security, oversight, maintaining attorney-client privilege, and logistics”.  Increasing the rate of review is also limited as, “[g]iven the trade-off between reading speed and comprehension…it is unrealistic to expect much room for improvement in the rates of unassisted human review”.  The study also notes that techniques for grouping documents, such as near-duplicate detection and clustering, while helpful, are “not the answer”.
  • Computer-Categorized Document Review Techniques May Be a Solution: Techniques such as predictive coding have the potential of reducing the review hours by about 75% with about the same level of consistency, resulting in review costs of less than $2,000 and total production costs of less than $7,000.  However, “lack of clear signals from the bench” that the techniques are defensible and lack of confidence by litigants that the techniques are reliable enough to reliably identify the majority of responsive documents and privileged documents are barriers to wide-scale adoption.

Not surprisingly, the recommendations included taking “the bold step of using, publicly and transparently, computer-categorized document review techniques” for large-scale eDiscovery efforts.

So, what do you think?  Are you surprised by the cost numbers?  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.

eDiscovery Best Practices: Tips for Saving Money in Litigation
 

A recent article on The National Law Journal (entitled Top 12 tips for saving money in litigation, authored by Damon W.D. Wright) had some good tips for – you guessed it – saving money during litigation.  I thought it would be worth discussing some of these, especially those that relate to eDiscovery cost savings practices.

  1. Conduct targeted preservation and collection: As the author notes, the duty to preserve is “not supposed to cause business operations to grind to a halt” and “the focus should be on the specific subject matter, evidence and likely witnesses in the case”.  If you promptly investigate and quickly identify those likely custodians and act to preserve their data, you’re probably satisfying your duty to preserve.  Just don’t lose sight of organization-wide processes that affect those likely witnesses, such as automated deletion policies, and suspend them for those witnesses, at least.  Don’t make the same mistake that EchoStar did.
  2. Calibrate the budget to the amount and importance of the case:  Ralph Losey, in his interview with eDiscovery Daily, spoke about bottom line proportional review and the idea of setting a budget based on the size and potential exposure of each case.  It simply doesn’t make sense to spend the same amount of effort in routine cases as it does for the “bet your company on the outcome” cases.
  3. File in a fast-moving court: Or pursue transfer if you’re the defendant.  Certainly, the longer a case drags out, the more expensive it is, and that includes for eDiscovery.
  4. Know the court: The author addresses this from a general perspective, but it could be important from an eDiscovery perspective, as a part of that.  Enough case law related to eDiscovery exists now that many judges have started to establish at least some track record with regard to issues such as spoliation, proportionality and sharing of eDiscovery costs.  It’s important to know how your judge views those issues.
  5. Have a key client liaison: Nobody knows the client better than the client themselves, so identifying the right person to serve as a liaison between the client and counsel can not only improve communications, but also streamline process and save costs.  As the author noted, the ideal client liaison will “know the organization well and have the authority, perseverance and communication skill needed to get the attention of others.”
  6. Select vendors and experts with care: The author notes that “you should always obtain price estimates (comparing ‘apples to apples’)” when considering eDiscovery vendors.  As a part of that, it’s important to make sure those comparisons are truly “apples to apples” and comprehensive.  Are per GB processing charges for the original (compressed) GB size or expanded?  Do hosting charges include per user fees or other ancillary charges or are they strictly per GB?  It’s important to make sure those distinctions are clear when comparing. 
  7. Try to get along with opposing counsel: While some are easier to get along with than others, the ability to cooperate with opposing counsel and discuss various discovery issues in the Fed.R.Civ.P. 26(f) conference (such as limits to discovery, form of production, privilege, etc.) will save considerable costs up front if the parties can agree.
  8. Allow opposing counsel to inspect and copy documents at their expense: Although most collections are predominantly in electronic form, there are still paper documents to be addressed and if you can make a non-privileged collection available for them to go through and select and copy the documents they want, that saves on your production costs.
  9. Limit e-mail production by custodians, search terms and date range: As the author noted and eDiscovery Daily previously noted, it’s not only a good idea for producing parties to limit production scope, but model orders to limit scope in patent cases are now being adopted in various jurisdictions, including Texas.
  10. Seek agreement on a narrowed privilege log and a no-waiver order: If you’re successful in #7 above, this should be part of what you try to negotiate.  It helps if both parties have similar concerns regarding the effort and cost to determine privilege and prepare a privilege log.
  11. Pursue cost-shifting for discovery: As yesterday’s post reflects, courts are more often expecting requesting parties to share in the discovery costs when the requests for information result in an undue burden or cost for the producing party.  And, as the author noted, the model order establishes specific parameters for patent cases and the expectation for requesting parties to pay for additional discovery.
  12. Stipulate to facts not in dispute: Why conduct discovery on facts not in dispute?  The author’s recommendation for early stipulations is a great idea for eliminating discovery in areas where it’s not necessary.

So, what do you think?  Did you get some good ideas?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday after the Easter holiday.  Have an eggs-cellent weekend!

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.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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.

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte
 

Often, the picture used to introduce the blog post is a whimsical (but public domain!) representation of the topic at hand.  However, today’s picture is intended to be a bit instructional.

As we work with more data daily and we keep buying larger hard drives to store that data, one gigabyte (GB) of data seems smaller and smaller.  Today, you can buy a portable 1 terabyte (TB) drive for less than $100 in some places.  Is the GB smaller than it used to be?  Last I checked, it’s still about a billion bytes (1024 x 1024 x 1024 or 1,073,741,824 bytes, to be exact).

From a page standpoint, most estimates that I’ve heard have estimated 1 GB to be 50,000 to 75,000 pages.  Of course, that can vary widely, depending on the file types comprising that GB.  A GB of 1 megabyte (MB) one-page, high-resolution image files will only take about 1,000 pages to equal a GB, whereas a collection of 5 kilobyte (KB) text file and small emails (with minimal attachments) could take as much as 200,000 pages to equal a GB.  So, 50,000 to 75,000 is probably a good average.

A ream of copy paper is 500 pages and a case holds 10 reams (5,000 pages).  So, a GB is the equivalent of 100 to 150 reams of paper (10 to 15 cases), which is enough paper to fill a small truck.  Hence, today’s picture shows a truck full of paper.

There was a Gartner report that re-published Anne Kershaw’s analysis on the cost to manually review 1 TB of data.  Quoting from the report, as follows:

“Considering that one terabyte is generally estimated to contain 75 million pages, a one-terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further assuming that a lawyer or paralegal can review 50 documents per hour (a very fast review rate), it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year. Assuming each reviewer is paid $50 per hour (a bargain), the cost could be more than $18,750,000.”

If it costs $18.75 million to review 1 TB, one could extrapolate that to approximately $18,750 to review each GB.  Dividing by 1,000 (ignoring the 24), that extrapolates to: 75,000 pages / 4 = 18,750 documents / 50 documents reviewed per hour = 375 review hours x $50 per hour = $18,750.  I’ve mentioned that figure to clients and prospects and they almost always seem surprised that the figure is so high.  Then, I ask them how many hours does it take them to review a truckload of paper to determine relevancy to the case?  😉

Bottom line: each GB effectively culled out through technology (such as early case assessment, first pass review tools like FirstPass™, powered by Venio) can save approximately $18,750 in review costs.  That’s why technology based assisted review approaches have become so popular and why it’s important to remember how expensive each additional GB can be.

So, what do you think?  Did you realize that each GB was so large or so expensive?  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.

eDiscovery Trends: Small Cases Need Love Too!
 

There was an interesting article in Law Technology News from Tom O’Connor, a previous thought leader interviewee on this blog, regarding the dilemma associated with affordability of eDiscovery technology for small cases (entitled Pricing: The Small Case E-Discovery Dilemma).  Even though small cases make up the overwhelming majority of cases filed and there is ESI to manage in those cases just like there is in the big cases, eDiscovery technology has historically been cost prohibitive for the cases when compared to the amount at dispute.

To make technology work for the smaller cases, Tom makes some assumptions, including:

  • Typical ESI File Formats: The types of files you’re working with in the smaller cases are typical file formats for email and office functions.  If you get into the less common file formats, you’re more likely to need more expensive technology to handle those.
  • Host the Data Yourself: Tom assumes “that you want to host the data yourself, and that you have the equipment and skills to do so” and that small cases “demand applications that can be installed on one computer for processing and review”.  It’s an interesting assumption, the question is do many of the firms managing these small cases have both the equipment and the skills to do so? (I’m not sure that they do).
  • Smaller Volumes of ESI: Of course, it makes perfect sense that the small case would be dealing with less ESI.  As Tom notes, “[w]e're also assuming you are not dealing with terabytes of information.”  Of course not.  However, with each GB representing 50,000 pages of data (or more), it doesn’t take much volume to require technology to effectively manage the data.
  • Cooperative Relationship: Tom also states the assumption that “you have a cooperative relationship with the other side, at least in terms of dealing with EDD”.  When that’s the case, it’s a lot easier to keep eDiscovery at a proportional level.

The article goes on to look at a case starting with 800 GB that ultimately yields 200 GB of reviewable material and the potentially exorbitant costs (as much as $1 million) associated with managing a 200 GB case.  Yet, as Tom notes, “[b]ig EDD companies don't want this business — we've been told that directly by sales managers at two separate top-tier companies.”

Last year at LegalTech, several of the thought leaders that I interviewed indicated that they were seeing more technology alternatives suitable for the smaller cases and Tom mentions some of those toward the end of the article.  One of our 2012 predictions was a greater adoption of eDiscovery technology for smaller cases (as even those cases are no longer that small), attorneys are forced to embrace eDiscovery technology for these cases and, eDiscovery providers are taking note.

In addition to the trends and technology alternatives that Tom writes about, I wrote an article that was published in LJN’s Legal Tech Newsletter in September entitled e-Discovery Technology for the $100,000 (Or Less) Case that discusses some of the trends that are starting to make technology more affordable for the smaller case.  These include SaaS applications in the cloud, pricing models that promote simplified and pay-as-you-go technology pricing, advanced data culling techniques and self-service functionality that enables the firm to “do it yourself” instead of paying the vendor for those services.  This article also identifies some technology alternatives that promote those concepts to make eDiscovery technology affordable even when the amount in dispute is no more than $100,000.

If you’re a subscriber to Legal Tech Newsletter, you can get that entire issue here.  If you’re not a subscriber, but would be interested in a reprint of that article, send me an email to daustin@ediscoverydaily.com and I’ll send you a copy.

So, what do you think?  Are you able to effectively use eDiscovery technology for smaller cases?  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.

eDiscovery Trends: Needing “Technology Assisted Review” to Write a Blog Post
 

Late on a Thursday night, with a variety of tasks and projects on my plate at the moment, it seems more difficult this night to find a unique and suitable topic for today’s blog post.

One thing I often do when looking for ideas is to hit the web and turn to the many resources that I read regularly to stay abreast of developments in the industry.  Usually when I do that, I find one article or blog post that “speaks to me” as a topic to talk about on this blog.  However, when doing so last night, I found several topics worth discussing and had difficulty selecting just one.  So, here are some of the notable articles and posts that I’ve been reviewing:

There’s plenty more articles out there.  I’ve barely scratched the surface.  When we launched eDiscovery Daily about 16 months ago, some wondered whether there would be enough eDiscovery news and information to talk about on a daily basis.  The problem we have found instead is that there is SO much to talk about, it’s difficult to choose.  Today, I was unable to choose just one topic, so, as the picture notes, “I have nothing to say”.  Therefore, I’ve had to use “technology assisted review” to provide a post to you, thanks to the many excellent articles and blogs out there.  Enjoy!

So, what do you think?  Are there any specific topics that you find are being discussed a lot on the web?  Are there any topics that you’d like to see discussed more?  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.

eDiscovery Trends: Our 2012 Predictions
 

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year.  It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are.  One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry.  Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

  • Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”.  Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”.  Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud).  It’s inevitable.
  • More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production.  With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so.  Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
  • Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery.  It’s the cost effective alternative.  But, organizations are demanding the control of a desktop application within their eDiscovery applications.  The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves.  And, more providers are responding to those needs.  That trend will continue this year.
  • Technology Assisted Review: This was the most popular prediction among the pundits we reviewed.  The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015.  More than five times the data in five years.  Even in the smaller cases, there’s simply too much data to not use technology to get through it all.  Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
  • Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more.  As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well.  And, eDiscovery providers are taking note.
  • Continued Focus on International eDiscovery:  So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue.  The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
  • Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award.  As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose?  Pay my costs!”.
  • Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control.  It will take time, but progress will be made toward that goal this year.
  • Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable.  In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
  • Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry.  This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think?  Care to offer your own predictions?  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.

eDiscovery Trends: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches.  While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
  • eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology.  Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices.  We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
  • Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery.  Bet you didn’t see that one coming!  For a look back at cases from 2011 dealing with social media issues, click here.
  • Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”.  For our posts related to Information Governance and management issues, click here.
  • Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud.  Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions.  Perhaps predicting growth of the cloud has become “old hat”.
  • Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
  • Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules.  Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions.  And, one predicted more action on eDiscovery certifications.

Some interesting predictions.  Tune in tomorrow for ours!

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  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.

eDiscovery Budgeting, Part 3: Understanding the Elements Contributing to Cost
 

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:

  • Collection: Collection of ESI can be simple and effortless, conducted by the client itself, or it may require the assistance of a hired third party to gain access to the ESI. The cost of collection can go up depending on the level of travel required. Forensic investigation and custodian interviews are not always necessary, but also increase the cost in cases requiring them.
  • Volume: The raw volume of ESI is one factor in the cost of eDiscovery, but not necessarily the one that counts. What's most important is the volume that must be reviewed by human eyes—and that can mean all of it, or only a fraction of the total ESI retrieved. It's possible to filter eDiscovery data by removing unwanted file types, limiting a search to a particular date range, or searching for relevant key words and phrases in documents. In order to moderate cost, it's usually wise to start with a more limited eDiscovery scope and expand it to cover a larger volume if necessary.  Many eDiscovery service providers offer free early cost assessment services to help attorneys estimate the volume of potentially responsive data that needs to be processed and reviewed. 
  • Number of Custodians: The number of sources involved in the collection of data can increase exponentially the amount of time and effort involved in eDiscovery, thereby increasing the cost accordingly.
  • Human Review: This is the most expensive factor in eDiscovery, requiring as much as 80% of the total eDiscovery budget.  It requires not only human beings working on an hourly wage, but time spent on training and the learning curve as they become more adept at recognizing and refining the key elements and terms required to be produced in a particular case. The more people and time involved in data review, the greater the probable expense.
  • Case Complexity: While a simple case may require a limited scope and review process, complex court cases can involve searching the same documents for multiple types of information for discovery. As a result, complex cases require more time spent on a document review strategy, as well as on a more elaborate review process.

So, what do you think? Are there any other major factors in eDiscovery budgeting or expense? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Budgeting, Part 2: Key Assumptions and Choices That Affect eDiscovery Budgeting
 

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?

  • Volume: Volume is almost always the largest driver of cost, as it will affect not only the quantity of data to be collected and processed, but also the amount of time human beings must spend reviewing discovery documents for relevance and privilege. Volume is also one of the more ambiguous factors. The most accurate estimate of volume is in megabytes (MB), gigabytes (GB) or terabytes (TB), but you won't always have access to these kinds of size descriptions. Instead, a client may tell you that there are "50,000 or so pages" of data, or "about 10,000 emails". The size of pages can vary widely depending on whether they are in an email, a PDF, or a word document, so it can be very difficult to estimate volume with any degree of accuracy.
  • Scope: It's wise to start with the smallest possible scope and expand if necessary, but that can be an inefficient way to review documents for eDiscovery, as it may mean going over the same files twice for different aspects of your eventual scope.
  • Efficiency: Whenever possible, it's important to plan an eDiscovery strategy in advance that will allow for a more efficient review of documents and data. The ability to maintain an efficient process of eDiscovery is largely dependent on timing and the ability to plan.
  • Timing: More time for eDiscovery activities means that the scope and search details can be refined, optimizing efficiency and minimizing costs. If the eDiscovery must be done in a hurry, efficiency suffers and costs rise.
  • Risk: Risk tolerance is a factor in cost, determining how much attention must be paid to refining every aspect of document review and data access. Mitigating risk up front through agreement and cooperation with opposing counsel can clearly define the risk so that you know where you stand.
  • Location: Where the data is located can affect costs and so can the jurisdiction of the case.  For example, different courts have provided different rulings on spoliation claims, so it’s important to consider location as part of the budgeting process.

So, what do you think? Have you found any of these assumptions to be especially problematic in your own eDiscovery budgeting estimates? Please share any comments you might have or if you'd like to know more about a particular topic.