11/6/2009. Advice from Counsel: In-House Pros on E-Discovery Cost Containment

Transcription

1 Advice from Counsel: In-House Pros on E-Discovery Cost Containment

2 Agenda Introduction of Presenters Ari Kaplan, Ari Kaplan Advisors Adam Cohen, FTI Technology Study Methodology Five Key Tips from In-House Pros Legal Review Using Fewer Vendors E-Discovery Vendor Viability In-House Control E-Discovery Cost Savings Additional Considerations 2

3 Our Presenters Ari Kaplan, Principal, Ari Kaplan Advisors Ari Kaplan is a well-known lawyer, author and public speaker that has written extensively on the intersection between law and technology. He has published over 200 articles in publications ranging from The Daily Telegraph to Wired Magazine. In addition, Ari has served as a columnist for eweek and a legal commentator for CNET Radio. He practiced law with large firms in New York City for nearly nine years, and his work has been recognized on CNN and in the Miami Herald, the New York Post, the ABA Journal, Above the Law, the National Jurist, the Chicago Lawyer, the California Recorder, and other publications. Ari is the creator of the 30 Minute Thursdays webinar series on legal career development and more information is available at He earned his J.D. from George Washington University Law School and his B.A., magna cum laude, from Boston University. Adam I. Cohen, Senior Managing Director, FTI Technology Adam Cohen is a senior managing director in FTI s Technology practice and is based in New York. Adam has more than 15 years of experience in law and technology, and routinely advises some of the world s leading corporations on data management and electronic discovery compliance issues. Adam s client engagements focus on particular litigations and investigations as well as pre-litigation readiness, corporate records management and advice for enterprise content management strategies. Prior to joining FTI, Adam was a litigation partner in the New York office of Weil, Gotshal & Manges LLP, where he represented large corporate clients in complex litigation involving computer and Internet-related issues. He is co-author (with Weil partner, David J. Lender) of the annually updated treatise Electronic Discovery: Law and Practice (Wolters Kluwer Publishers), which has been cited as authority in several landmark opinions involving issues of electronic discovery in the Federal Courts (including Zubulake v. UBS Warburg and Lorraine v. Markel). Adam is also co-author of the recently published ESI Handbook: Sources, Technology and Process (Wolters Kluwer Publishers). An adjunct faculty member at both Rutgers Law School in New Jersey and Fordham Law School in New York, Adam teaches Electronic Discovery courses designed to prepare the next generation of attorneys for effective practice in this area. Adam is also a member of the Sedona Conference working group on electronic discovery and co-chairs the New York State Bar Association s electronic discovery committee. 3

4 Study Methodology 4

5 Key Findings: Legal Review Since legal review is the biggest cost, focus on that area to find savings. 72% cited legal review as the most expensive phase of e-discovery Respondents offered a range of measures to help reduce the cost of review, including: 86% process and reduce data sets in-house before sending them on for legal review. 59% outsource legal review to a third-party provider. Two out of every five respondents reported using clustering or visualization tools to speed the review process. 5

6 Key Findings: Legal Review Based on Electronic Discovery Reference Model (EDRM), used with permission Culling: Reduce population of potentially responsive documents using subjective word & concept choices Review and Coding: Review and subjectively annotate to identify responsive documents 6

7 Key Findings: Using Fewer Vendors We want one vendor and the ability to build a relationship. 7

8 Key Findings: Using Fewer Vendors Typical Enterprise Customer Process CORPORATION Info Mgmt Identify Preserve LAW FIRM Present LAW FIRM Present Review Review Process Process SERVICE PROVIDER SERVICE PROVIDER SERVICE PROVIDER SERVICE PROVIDER Produce Produce IT Collect LEGAL Results: No single process for e-discovery. Massive document review expense. LAW FIRM Present LAW FIRM Present Review Review Process Process SERVICE PROVIDER SERVICE PROVIDER SERVICE PROVIDER SERVICE PROVIDER Produce Produce 8

9 Key Findings: E-Discovery Vendor Viability Viability is important, but e-discovery is such a young field that it can be unclear who is truly viable. 9

10 Key Findings: E-Discovery Vendor Viability By the end of 2009, there will be 25% fewer vendors in the e-discovery market as a result of mergers, acquisitions and vendors exiting the market. - MarketScope for E-Discovery Software Product Vendors By Deb Logan, John Bace and Whit Andrews December 17,

11 Key Findings: In-House Control Internalize the costs by developing internal practices and investing in certain tools. 11

12 Key Findings: In-House Control DISCOVERY MANAGEMENT Coordinate in-house and outside counsel, vendors, and manage cost DISCOVERY MANAGEMENT Provide detailed strategic discovery advice to outside and inside counsel Manage entire ESI lifecycle from identification through production Develop and defend world-class procedures for handling ESI, including testimony Provide innovative, multi-tool approaches Develop repeatable, cross-matter procedures for corporate legal departments Conduct corporate system inventories to develop data maps Develop cost estimates to support excess burden claims Provide geographically global services for multinational corporations Preferred partnerships and outsourcing relationships with corporations Based on Electronic Discovery Reference Model (EDRM), used with permission 12

13 Key Findings: E-Discovery Cost Savings Cost is extremely important, but ultimately it is a cost benefit analysis. 13

14 Key Findings: E-Discovery Cost Savings Key considerations: Take a holistic view of cost and benefit. ESI will likely be needed as admissible evidence. The nature of privileged documents may drive the cost of the privilege review method, which is often the most expensive component of the document review process. Key questions: Can the process and tools be utilized for different types of cases? How much of the process and tools can you realistically bring in-house? Can you make short-term tactical investments that will fit into a long-term holistic strategy? 14

15 Key Findings: Additional Considerations You have to have the right people on board or you will just be running in circles. 15

16 Thank You For additional questions, please contact Adam Cohen at For more information about FTI Technology, upcoming Webinars and complimentary whitepapers, please visit 16