In-house Counsel s Next Cost Savings Frontier: Cost Minimization by Centralizing Litigation Document Collections

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1 A One TouchTM White Paper A unique approach to the management of discovery documents, combining centralized management, personnel, expertise and systems to enable and foster retention of work product and transfer of knowledge across matters, cases and law firms. By: Douglas Forrest September, 2011

2 About the author Douglas Forrest is an attorney, and the Chief Technical Officer of Ozmosys, Inc, where he designs Knowledge Management applications used by leading law firms and financial service institutions. He has been involved with the application of technology to discovery, as an attorney and technologist, for over 25 years, from the first computerized litigation support system (Aquarius, used in the IBM antitrust litigation), through the early days of imaging and coding, to today's most advanced systems. A designer of litigation and ediscovery products, applications and systems, he has also provided ediscovery services to many AmLaw 100 law firms. He is a 1976 graduate of Stanford Law School. Copyright 2011 Everest Technologies. (973) Page 2

3 Executive Summary ediscovery is complicated and, as currently performed, expensive and risky. Most companies use decentralized, case-by-case ediscovery processes that leave details and document management decision-making to outside counsel. Because procedures, standards and software differ from firm to firm and even from case to case within a firm, clients costs balloon and the possibility of inconsistent results and discovery sanctions increase. It s time for in-house counsel to take command of their companies ediscovery expenditures by taking control of the ediscovery processes that generate costs. Effective ediscovery processes outlined in this paper can help in-house counsel to realize substantial savings in litigation costs through more efficient management and control of corporate data, attorney work product and human resources. Litigation repositories containing discovery documents and associated attorney work product are generally set up as separate silos on a matter-specific basis. Even when documents in one matter are applicable to another matter, separate silos are created because of the absence of procedures to consolidate, coordinate and reuse those collections and associated attorney work product. The implementation of multiple silos, created and managed by multiple law firms, hinders and may even prevent both the development of the defensible repeatable processes that are key to reducing risk and clients ability to retain those processes for use in other matters going forward. Duplicative, inconsistent and expensive ediscovery efforts have become the norm, and corporations pay for that inefficiency time and time again. In-house counsel are in a position to transform document management processes in a way that eliminates duplicative effort and substantially reduces ediscovery expense by making intelligent reuse of attorney work product (e.g., privilege determinations) across matters. The methods outlined in this paper describe a unique approach to document management that combines centralized control of process, personnel, expertise and systems to enable and promote work product retention and knowledge transfer across matters, cases and law firms, with zero capital expense or investment. Page 3

4 What the Work Is Illustrated below is the most common Electronic Discovery Reference Model (EDRM). It is generally accepted by in-house and outside counsel, as well as by most ediscovery vendors. However, missing from the illustration is the distribution of costs across the ediscovery life-cycle as well as the unnecessarily expensive consequences of deploying the process in isolated case-specific silos. The principal cost characteristics to consider are: 1. cost per document increases at each stage of the process, from the start through document processing, review and analysis stages, and then tapers off; and 2. the largest cost in the process is attorney review which can typically account for 60%-90% of all litigation costs for a given case. As a result, ediscovery vendors often depict their processes with a funnel, showing a document stream that is winnowed down before reaching the expensive review stage. During the early EDRM stages relevant documents are identified, collected and preserved. Source locations include hard drives, network file servers, servers, central storage locations such as Network Attached Storage ( NAS ) and comprehensive repositories controlled by Document Management Systems ( DMS ). Identification In practice, the process of identifying documents starts by identifying the persons ( custodians ) involved with the facts at issue and determining the location of their data. Depending on the type of litigation, there may be some custodians with only limited involvement and others, such as C-level executives or key personnel, with extensive and continued involvement spanning two or more related matters, whose data is required repeatedly. Page 4

5 Collection and Preservation Document collection and preservation are applied against aggregated data and thus are relatively inexpensive stages of the process, even when filtering (e.g., date range or document type, etc.) is performed at the same time. Depending on the type of litigation involved, the same data (documents) may be required in more than one matter. Processing Document processing can be thought of in stages as follows: 1. ingestion of files, together with their extrinsic metadata, i.e., information about data, such as source/custodian, device, path, file system, created/modified/deleted dates and times; 2. extraction of documents from their containers such as files (PST and NSF files); 3. calculation of unique digital identifiers ( hashes or hash values ) for each document and file; 4. extraction of metadata from within documents, e.g., internal document properties such as author maintained by Microsoft Office applications like MS-Word or Excel; 5. extraction of fielded data, such as the sender and subject of an ; 6. extraction of the text of a document; and 7. determination, based on hashes and/or other analytics, of those documents that are duplicates or near-duplicates of each other. Processing is almost universally priced on a per-gigabyte of data basis and is relatively inexpensive (typically there are 10,000 to 20,000 documents per gigabyte of data). Attorney Review Attorney review is where costs quickly escalate. Once files have been processed and filtered the document review begins. A first pass document review is performed on a file by file basis, to determine: 1. whether the document under review is responsive to the document request; and 2. if determined to be responsive: a. the specific issues to which it relates; b. whether it is protected by attorney-client or any other privilege against production; c. whether it merits extraordinary confidentiality measures, such as for a trade secret; and d. whether any other aspect of the document should be highlighted for special consideration. Moreover, review is an iterative process. First pass review is often performed by junior associates, paralegals and/or contract attorneys. Despite care taken to minimize the cost of professionals and paraprofessionals reviewing the document collection, this stage is where the greatest costs are incurred in any document-intensive ediscovery process. Additional levels of review, e.g., to identify key documents or to prepare witness books for depositions, require more case-specific and legal expertise, and so are generally performed by higher cost law firm personnel. Depending on where the review is performed, and by whom, costs can run from $75 to $300 per hour per reviewer. Based on typical run rates of 400 to 500 documents reviewed per eight-hour day, the cost to review a single document will range from $1.50 to $5.00. Page 5

6 Additionally, because of the intensive human involvement required to review even ordinary document collections, strict management, procedures, quality control and validation measures must be employed and documented in order to assure that the results are consistent and defensible. Such oversight can also be expensive (but not nearly as expensive as the consequences of failing to exercise that oversight in a defensible manner). According to a 2009 KPMG estimate, first pass attorney review can account for between 60% and 90% of total litigation costs. Analysis, Production and Presentation Analysis in the EDRM workflow involves a variety of methods that can streamline the review process and improve its results. Analysis can occur before, during and after review, and is usually done as an automated process applied to aggregated data. The post-processing-review-analysis portions of the life-cycle are production and presentation. Production is priced on a per-page basis and, even when large volumes are involved, is a relatively small part of the total cost, especially when compared with review. Presentation, whether to witnesses during deposition or at trial, involves only a relatively small number of documents, and is likewise inexpensive compared with document review. Page 6

7 Traditional Workflow Traditional ediscovery workflow can be summarized as follows: 1. client retains law firm; 2. client and law firm identify potential custodians; 3. client has data collected; 4. law firm receives raw data from client; 5. law firm engages vendor to process raw data according to the law firm s specifications; and 6. Processed data loaded into firm s document management system for attorney review. CLIENT LAW FIRM VENDOR Those steps are repeated with each new matter, usually without recognizing that many of the document collections overlap and that a good deal of work product, having been performed once, can be reused. The Most Expensive ediscovery Decision Early in ediscovery on any given matter, one fateful and very expensive decision is made: to handle the ediscovery for each matter independently. The decision to address ediscovery on a case-by-case basis has profound consequences. Unfortunately, that decision is usually made by default, often without any awareness that better and less expensive options are available. Permitting outside counsel to manage the processing, hosting and review of data often precludes any opportunity to benefit from economies of scale and efficiencies that would be realized by a centralized approach. Pricing for all processes is based on the volume of the particular matter rather than on the volume of the aggregate of all matters. Another consequence of the case-by-case approach to ediscovery management is the intentional entombment of documents for each matter, with associated work product, in separate, often incompatible, document repositories. Any knowledge or hard earned insight gained from the processing or review of data on one matter usually is not available to those processing or reviewing the same data in other matters. CLIENT Page 7

8 The Case for Centralization A centralized approach to the processing, hosting and review of data enables the client to benefit from cost savings and efficiencies associated with economies of scale. This approach enables pricing to be based on the aggregate of all matters as opposed to the volume of each matter separately. Managing all data processes (processing, hosting and review) across matters further allows clients to establish and document standardized procedures for universal implementation. Centralization of core functions and processes is essential for consistency. Just as McDonald s ensures consistent taste, quality and user-experiences across an army of franchises, clients that centralize core ediscovery processes can assure defensible and repeatable results across multiple matters. The use of standardized procedures helps establish defensible ediscovery processes. Best practices arise from the creation and maintenance of defensible ediscovery processes. When practiced by the law firm on a given case, that work process knowledge stays with the law firm. When decisions are centralized work process knowledge and best practices are retained by the client and law firms are free to practice law while substantially diminishing their responsibilities for document management. On the technology side, standardization on a single platform controlled by the client also provides a host of benefits: Elimination of conversion issues from incompatible data stores; Development and retention of in-depth platform know-how and best practices; Ability to capitalize on that know-how and employ those best practices in new matters; and Immediate application of techniques newly created in one matter across all other on-going matters. Moreover, review platforms are in effect two applications: one for the review itself and the other to manage the review process. Standardization on a single, centralized platform enables review process management and improvement across matters and law firms. The Case for Work Product Retention To quote George Santayana, those who cannot remember the past are condemned to repeat it. In the ediscovery context, that means paying for it again and again. Depending on the kind of litigation that a client faces, the same documents can turn up repeatedly in different matters. Many determinations made during the document review stage in one matter should be the same in every matter. Absent waiver, a document determined to be privileged in one matter will be privileged in all cases and contexts. The same is true of a document determined to contain protectable trade secrets. In some cases, even a determination of relevance may be useful in one or more related matters. In all cases, initial review determinations are expensive, as will be every subsequent de novo review determination of the same document in other matters. Also expensive can be the consequences of ignorance not knowing the treatment that a document received during a prior review, e.g., that a privileged document was produced in another matter and that ignorance could be fatal to a privilege claim in a subsequent matter. Moreover, the very fact of inconsistent determinations can be used to strike directly at clients overall credibility, and suggest a failure in clients obligations of good faith, in other matters. Page 8

9 One TouchTM - A Better Way One TouchTM is an integrated approach to reducing ediscovery costs and risk through sound business practices. One TouchTM is designed to empower companies to manage their own data, including all associated work product, in a consistent, efficient manner while relieving law firms of that burden so they can focus on their highest and best use -- lawyering. The One TouchTM approach reorganizes the ediscovery process by replacing the current system of one-off data collections, followed by de novo determinations made by individual law firms, using different tools, data stores and review standards. The One TouchTM approach employs centralized decision-making, centralized processing and a strict adherence to company defined standards, while providing an integrated cross-case document repository that enables work product reuse and process knowledge retention, resulting in the realization of economies of scale across entire litigation inventories. New Workflow When comparing the traditional workflow to the new workflow, there are significant differences in how the process is designed and managed, where the data is processed and hosted and how work product is coordinated across matters. The One TouchTM ediscovery practice workflow can be summarized as follows: 1. client retains law firm; 2. client and law firm identify potential custodians; 3. client has data collected; 4. data is processed centrally in accordance with uniform standards and procedures; 5. processed data, including prior work product, loaded into client s DMS for review; and 6. work product created by review is retained for use in future matters. CENTRALIZATION STANDARDIZATION PROCESS MANAGEMENT The foundation of the One Touch approach is the integrated hosted repository and review platform. Documents are stored only once, with their entire associated review work product. The retention of document-specific work product means that core aspects of document review, such as privilege and work product determinations, need be made and paid for only once. In order to streamline data and project management, there is a single set of standards enforced to handle all discovery management processes. Page 9

10 The integrated repository and review platform ensures that documents for a new matter are instantly identified as to whether they are already in the system or entirely new documents. The review platform makes available all relevant work product from prior matters. By pre-marking documents identified as privileged in an earlier matter duplicative privilege review is skipped, eliminating redundant attorney review and its attendant costs. This same process and associated benefits can be applied to documents that have been previously redacted, produced, or flagged as trade secret, etc. Costs associated with documents that are new to the integrated repository also are lowered, by virtue of being handled in a streamlined manner where economies of scale and lower costs of centralized management and standardization are already inherent to the system. As document review proceeds, the One TouchTM approach makes all the work that is done during the review available in the integrated repository and in all matters where there are common documents, resulting in on-going cost saving and risk reduction. The One TouchTM approach provides a unique way to manage litigation documents, combining centralized management, personnel, expertise and systems to enable and foster retention of work product and transfer of knowledge across matters, cases and law firms, with no capital expenses or outlays. Conclusion In-house counsel have an opportunity, via sound business processes as outlined above, to take pro-active control of their litigation costs. By establishing defensible, repeatable discovery workflows, in-house counsel can eliminate expensive, duplicative, inconsistent and risky discovery and make tight litigation budgets go farther. One TouchTM is the better way. About Everest Technologies Everest Technologies is a discovery management vendor responsible for conceptualizing the One Touch approach. Everest Technologies, Canon Business Solutions, and IPRO Corp are members of a consortium formed to market and implement One Touch as part of a larger corporate initiative. Page 10

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