Wait. No, Go. Wait. No, Go. Striking the Balance on when to Incur Costs For eDiscovery

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05Dec2017

Wait. No, Go. Wait. No, Go. Striking the Balance on when to Incur Costs For eDiscovery

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By Kelly Twigger

Ah, the mad scramble of ediscovery.

You know what I’m talking about — where the client wants to wait and wait and wait on engaging in discovery until the last possible minute to avoid unnecessary costs, requiring everyone to run around crazy for days on end when the client realizes that deadlines are imminent. Theoretically, that makes sense. No one wants or needs to spend money that is just wasted effort. Practically, it means decisions are rushed, more manpower and hours are spent than would happen in a more controlled situation, and the potential for mistakes rises exponentially.

No question — the balancing of the teeter-totter of ediscovery costs is hard. The reality is that there is a tipping point on that balance where the costs tip to more expensive when you wait to start ediscovery.  Go too early and you dip down into unnecessary costs before you know whether you need to expend cash.

But there are ways to avoid the last-minute insanity AND manage your discovery costs.  Warning — they require advance planning, strategy, and some expenditure.  But the expenditures should be able to be leveraged across all matters.

I can’t give you a magic easy button, but here are a few tips to do in advance of the go-no go decision on discovery, to strike the balance between being prepared and spending money before you have to:

  1. Have an established relationship with counsel or a consultant who knows your systems and how your custodians create and store data.  The most time-intensive parts of identifying and collecting information are learning the clients’ systems, the retention of data in each system, and how to access data.  Many clients require a cybersecurity review to use a remote collection tool, and that takes time. With many clients switching to Office 365 and eliminating on-premise Exchange servers, moving to new email archives and implementing new document management systems all the time, you have to know how that impacts the sources that you need to collect from for a certain date range on a matter.  Doing that up front will allow a more thorough analysis and the ability to include the various departments (IT, Security, those implicated by the matter).  You simply have no idea what these issues will be for your corporate or individual client.
  2. Identify your key custodians and their data sources, as well as any additional data sources that are system based.  This goes hand in hand with No. 1 — know what you need to get for each custodian and how you are going to get it.  For larger systems that are implicated — this can be design systems, SAP, insurance databases, etc. — figure out what is available from these systems and how you will produce data.  Then write it into the proposed ESI protocol.
  3. Identify any data issues that you will need to negotiate with opposing counsel.  Form of production, date range of data, how to phase discovery, how to deal with specific data sets from specific sources — these are all issues that you need to think through and plan for BEFORE proposing or agreeing to an ESI protocol.  That protocol will govern the entire case, and if you say the other side can produce in one form only without agreeing to what form it will be, you’ll most likely be stuck.

The level of complexity of your client’s systems, the claims alleged, and the sheer number of custodians will all impact what you can do early on to keep things moving, while defraying costs until the last discussion points have been exhausted.  I’ve had clients who plan and clients who don’t, and those that don’t end up paying substantially more for the same work.  More work to be done in a short time frame requires a bigger team, and a lack of shared knowledge across a team means inefficiencies and decisions being made without complete information.

Mistakes like producing privileged materials and not redacting materials correctly happen during rushed projects. Avoid them and the additional expense and rush of the mad scramble.

You’ll sleep better.

This article first appeared on Above the Law. 

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