E-Discovery Tip Sheet

Transcription

1 E-Discovery Tip Sheet A Painful Discovery Toward the end of last year, I populated the Tip Sheet with a series on collections (see ediscovery Tip Sheet: Taking Up Collections Part 1, Part 2, Part 3, Part 4 and Part 5), which served as a primer on how to think about the mechanics of addressing different categories of electronic data. Today s topic is more along the lines of retiring Magistrate Judge John Facciola s concern, as stated at the University of Florida s E- Discovery Project Fall 2014 Distinguished Lecture, about the cost of e-discovery: The extraordinary costs of e-discovery and litigation are driving small companies and the middle class out of the system, he said. I did not become a judge to be a hall monitor in a playground where only the rich can play. Sadly we are at that a point, he said. We can attack the problem or accept the social consequences of a whole class of litigation being left out of the federal courts." From Judge Facciola: Discovery Disputes Are a Cry for Help by William Hamilton (Legaltech news, October 10, 2014, Discovery-Disputes-Are-a-Cry-for-Help-#ixzz3VyvSxhEM) To illustrate the point, let s say a boutique defense firm calls its litigation support vendor to discuss a very large new case, involving terabytes of documents, as well as audio and video evidence. They look at a Web review platform which offers scale, security and simplicity of use, and talk about technology that will index the thousands of audio and video records. Problem solved, right? Sadly, no. The firm s client, a defendant in a Federal action, cannot afford these solutions, even at volume pricing, so they must consider using a more limited in-house review tool that the ultimate client might be able to afford. They may offer to selfcollect requested classes of documents, and try to negotiate production limits at the Rule 26(f) conference. The lead attorney will remind everyone at every opportunity that honest, document best efforts, not perfection, is the standard for discovery. The IT

2 April 2015 E-Discovery Tip Sheet Page 2 support person will plug in a network-attached storage (NAS) device, clear some space on a Windows server for the database, try to hook in remote users with various add-ons or web tools, and hope for the best. At this stage of the digital revolution, with cheap storage, free tools, low-cost Internet connectivity and continual advances in software development, how can anyone be denied level access to effective document review tools? There are many hosted solutions offering all-you-can eat, low-cost data ingestion, culling, processing, review and production. Parties may now avail themselves of increased capabilities with greater degrees of cost certainty in these flat pricing models, all of it expensible, with minimal training required, little or no internal technical input, and zero capital outlay. So where s the problem? Electronic discovery turns on volume: large bodies of data are digested and hosted at per-gigabyte (GB) rates. This works out reasonably well for a case involving relatively small amounts of data. To cite one model, 10GB at $50/GB all-in (with data ingestion, user accounts and production included) works out to $500 a month; to cite another, the same 10GB at $35/GB hosting and $75/user per month for two users also comes to $500/month. Costs per GB come down at various break points, and ancillary services can be bundled in. Now let s look at the case discussed above: taking one Terabyte (1,024GB, generally rounded to 1,000) as a benchmark number, if the volume hosting discount comes down to $10/GB, the prospective client would still be looking at $10,000 a month, minimum, to use a modern hosted Web review tool. Does this pose the same problem to the prospective client s adversary? Where David meets Goliath before the Bar, the answer is usually No. What can be done? Unequal access to document review subverts the goal of equal justice under the law. Let s step back and examine the purpose of document review: it is to evaluate physical and electronic records for possible evidence in establishing or refuting a purported fact before the court. In the days of handwritten contracts, deeds and correspondence, all such potential evidence might exist in a single folder. Move ahead to typewriters and file cabinets, and a box or two might require examination.

3 April 2015 E-Discovery Tip Sheet Page 3 Enter Xerography: the ability to make a practically infinite number of copies of a practically infinite number of pages causes something like this to happen in any kind of substantial litigation. This gave rise to the concept of forklift production, where a large firm with deep pockets would deluge opposing counsel with truckloads of boxes. Creating indexes for all these bankers boxes grew increasingly onerous, to the point where a few enterprising people in the legal field used relatively inexpensive database management tools running on readily available personal computers to manage the document indexes. Over time, with the advent of document scanning to image file types and PC graphics rendering capabilities, it became possible to relate an image of each page of a document to the index record, and even to recognize text in the image. This was the first computer-assisted review method. The costs, for the time, were not small: assuming that you had a relatively powerful PC or PC network, there was a capital cost of a few thousand dollars for the license, plus annual software maintenance costs of about 18% of the original license cost. Once in place, however, the savings in reviewer efficiency for coding, tagging and production were substantial. Fast forward to examining the Great Sock Drawer of modern life: electronically stored information ( ESI ), residing in personal, home or laptop computers, servers, smartphones, and the ubiquitous cloud of datacenter-based virtual storage. Every , spreadsheet, text message, voice mail, video, and all the metadata embedded in each, is potentially discoverable. If it is discoverable, given the adversarial bent of litigation, it is necessarily reviewable, for relevance, privilege, or documentation of issues which tell the story of the case. Human comprehension, unaided, tends to falter when facing millions of documents; they must be intelligently culled into something more manageable, and then digested and coded. Reviewer eyeballs are still the costliest element of review in billable time, but there are significant costs as well in the tools which can facilitate a more efficient review process. Hosted review, with relatively simple tagging, foldering, and thread identification, has a cost. Technology-assisted review, with the promise of great time and reviewer savings, has fairly formidable up-front costs in its own right in order to realize its savings overall. Where is the cash-strapped litigant to turn?

4 April 2015 E-Discovery Tip Sheet Page 4 our scenario: A few software vendors have offered partial solutions, neither of which covers iconect Development, LLC has announced that its iconect-xera product is available at no cost for pro bono projects. The offer is limited to current customers to encourage their taking on worthy unfunded cases. Nuix offers Proof Finder, a fully functional version of its Workbench software limited to data sets of up to 15GB, for $100 a year, all of which is donated to the charity Room to Read. Can we do more? We all must make a living, but also live in a society fully served by justice. We are thought leaders in this space. Can we agree on protocols for pooling party resources, or creating a public court analysis space, where the tools available to the parties, at least, may be equal? Only then will we truly enter the age of E-Discovery. -- Andy Kass akass@uslegalsupport.com The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily represent the opinion of U.S. Legal Support, Inc. U.S. LEGAL SUPPORT, INC. ESI & Litigation Services PROVIDING EXPERT SOLUTIONS FROM DISCOVERY TO VERDICT e-discovery Document Collection & Review Litigation Management Litigation Software Training Meet & Confer Advice Court Reporting Services At Trial Electronic Evidence Presentation Trial Consulting Demonstrative Graphics Courtroom & War Room Equipment Deposition & Case Management Services Record Retrieval Copyright 2015 U.S. Legal Support, Inc., 425 Park Avenue, New York NY (800) All rights reserved. To update your address or unsubscribe from these mailings, please reply to this with CANCEL in the subject line.

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