This will be the first article in a series that I plan to write about the industry of eDiscovery. For a topic this large, I feel it will be easier to eat the elephant one bite at a time. I am also confident that I am not going to make any friends in the litigation support vendor market with this series of articles and may actually loose a couple, but someone has to say it.

eDiscovery is a mess. It is comprised with complexities, frustration, confusion, and uncontrolled expense. As many of you are aware, I have worked in the eDiscovery industry as a technologist for years. I would often wonder why more legal teams did not embrace the efficiencies of eDiscovery.  As I step back and look at the industry, along with reading and hearing the war stories surrounding eDiscovery, I can’t say that I blame them. eDiscovery, when implemented properly, should  be the extension of the discovery process that includes electronic information. When conducted properly, it should facilitate the success and efficiencies of the discovery process. But eDiscovery appears to create additional problems and foster uncontrollable expense. For these reasons, I am going to dedicate the next few issues of this newsletter  attempting to simplify and demonstrate methods of both efficiency and cost savings through each phase of the EDRM lifecycle.

As I begin this series of articles, I will start by describing my role in the eDiscovery market so there is an understanding of my perspective. My eDiscovery career began as many did, somewhat by accident. I had the responsibility of digital forensic investigations for a large healthcare company that became involved in John B. v Goetz.

When my company was presented with the situation, I agreed to lead the effort. I made this decision because the process to complete the request for electronic information was similar in approach and tools that I used for forensic investigations, and the vendor quotes seemed astronomical. I could not have asked for a better opportunity to learn about the challenges of eDiscovery. Since that time, I have been an eDiscovery consultant. My company is not an eDiscovery processing shop, nor do we have a capital investment in technology that I feel compelled to promote. We promote and provide the tools that best meet the needs of our clients. Our role is to assist our clients at any and every phase of the EDRM lifecycle to meet their needs in a successful manner. Within this role, we find that there are efficiencies in each stage of the EDRM lifecycle and I would like to share some of them with you.

As the articles will describe, there are many phases of the eDiscovery lifecycle that, when approached properly, can save complication and expense. Through this series of articles, I want to convey something very important; eDiscovery is not a product, it is a process. This process requires clear communications, technical expertise, and a clear understanding from all parties involved. For this first article I want to jump ahead to describe how you can make the largest financial impact the quickest, the processing phase.

Many times the client may not understand the technical costs of eDsicovery compared to the legal costs. Allow me me help you save some eDiscovery costs so there is more budget for you to assist your client with their case.

Want to know how you can directly save costs without sacrifice? I am just going to say it, stop “TIFFing” out all of the documents that you review for your client. When you finish drafting your complaint or motion for summary judgment, do you convert it to a TIFF before you perform the final review? Then why are you converting all of your client’s documents to an image before you review them? The document conversion aspect of processing is one of the biggest wastes of money in eDiscovery. Many feel that this processing phase of eDiscovery is the most expense, TIFFing every document before you review it is a large portion of that expense. Let’s go ahead and address the arguments you are making right now.

• I must convert the document to an image to redact. You are correct and I am not discouraging that. But you should only convert, “on the fly”, the documents that need redacting.
• The format requested is TIFF document with a load file. You can still meet this request. Only convert the documents that are to be produced.
• My produced documents must have Bates Stamps. Just as the other examples, you can still do this. Can you guess my next statement?
• My vendor states that all electronic documents must be processed and converted before they can be loaded into the review platform. Ask them why. If they cannot provide you with an adequate answer for the additional expense, find another vendor.

If you no longer endure the expense of converting all documents to a TIFF image before loading for review, congratulations. This should have increased funds for you and your firm to better litigate your client’s case. There is still an intermediary step to watch out for: “native” processing before loading into a review platform. Many times you are being charged to natively process everything, and then charged again for the review platform, which may or may not be provided by the same vendor.

Many of you may grin as you read this due to the early case assessment platform that you are using. Early case assessment technology is wonderful, but the eDiscovery market still struggles to define “Early Case Assessment”. Many state that early case assessment is a process and not a product, and the term has become a common marketing phrase without a definitive meaning. I do not want to discourage the use, but want to make sure that you fully leverage the technology provided for the investment paid.  The cost of many early case assessment platforms compare to the document conversion and native processing that we have already discussed. If you simply want to search, cull information, review, and redact documents, you do not need an early case assessment platform. If you are using an early case assessment to simply review electronic documents, you are wasting money.

The eDiscovery technologies that we now suggest for the majority of our clients with eDiscovery matters are called “Unified eDiscovery Platforms”. Unified eDiscovery platforms, often provided on a “pay as you go” model, now consolidate many of the software packages needed in eDiscovery to a single platform. The unified platform ingests electronic documents in their native form, they way technology intended. Some platforms are modular with additional features such as early case assessment, but only if needed. When unified eDiscovery platforms provide the features needed, huge expense can be saved.

I have continued to state that, with the information in this article, you can directly lower the eDiscovery costs for your client with little sacrifice. I will demonstrate with a common scenario, you have 100GB of data to be culled, reviewed, redacted, and potentially responsive information will be produced. Below is a pricing table comparison.

As you can see, using a basic unified eDiscovery platform for the processing phase can save your client 75% when compared to TIFF conversions and 66% when compared to early case assessment platforms. For simplicity, I have not provided estimates for native processing and then the use of another review platform. That scenario would be in the same price range as the ECA option. I have also not included the costs of production. One last note is the price used for the unified eDiscovery platform is the pricing model that we provide to our clients and pricing of other unified eDiscovery platforms may vary.

My hope is that this article has caused you to think about the expense of the eDiscovery process that you have direct control over. In the rough economic times we are currently in, these savings could potentially be applied to litigating the case. As I stated early in this article, eDiscovery is a process, not a product. I will continue this theme as we discuss each phase of the EDRM lifecycle. Next month we will go back to the beginning, the information management phase. When this phase is properly implemented, legal counsel adds great value to their clients and eDiscovery requests are more management.