The Hidden Costs of EDiscovery and Proven Strategies

The Hidden Costs of E-Discovery and Proven Strategies for Cost Cutting IQPC 4 th E-Discovery Conference Jersey City, October, 2007 PANELISTS: James M. Wright, P. E. - FTI Consulting, Inc. Mark Reichenbach - Meta. LINCS Nick Van. Buskirk - Message. One 1

Some Basic Considerations • Three general kinds of costs: – Internal Costs • People, Hardware, Technology – Technology Vendors • Services, technology fees – Legal Review • Law firms, technology fees • Legal review is always the greatest component, and data volume reduction is the key to reducing those costs 2

General Cost Cutting Strategies • Reduce the amount of ESI requiring processing and review • Develop a cost-effective Discovery Plan – Tiered approach to key players – Tiered search criteria and/or protocols – Legal Review resources • Employ technology to increase efficiency of processing and review 3

The E-Discovery Team • Client – Owns Risk, Pays Costs, so can make risk decisions quickly – Knows ESI best, has IT resources – Ability to move early and quickly • Client – Strategic Legal Knowledge – Familiarity with Court – Knowledge of legal issues in E-Discovery Counsel Discovery • E-Discovery Tech Vendor[s] – – Management E-Discovery Vendors Counsel • Powerful technology options Ability to apply resources as needed Experience in processing ESI Ability to provide expert testimony to EDiscovery matters Discovery Management – Develops & Manages Discovery Plan • • • Activities Resources Schedule – Identifies Risk & Cost Issues – Coordinates Discovery Team 4

Early Actions Timeline Under the new FRCP Filing Duty to preserve Meet & Confer ? ? days Scheduling Conference 21 days time Identify & Collect ESI Analyze ESI : Qty/Type Develop ED Plan Prep for Meet & Confer 5

Reducing ESI Quantity • Identify & negotiate subsets of the ESI collection not requiring processing or review – Date Range – File Types • Identify subsets of the ESI collection too burdensome to process and review – Burdens: Cost or business disruption – May need to prove the burden to the court 6

Developing the Discovery Plan • Tiered Key Player List – Lower tiers use more targeted search criteria • Search criteria with a tiered approach – Low Hanging Fruit first – A keyword search process that avoids high hit rates • Sensible methodology for non-indexable file types – Sampling – Narrower, targeted search/filtering criteria • • • Cost-effective Form[s] of Production Rolling production schedule Using common tech vendor[s] Consider Clawback agreements Use Contract attys for first review Cost-effective Form[s] of Production 7

Using Technology • Consider internal technology tools – Publishing Litigation Holds – Collection – Initial filtering/culling • Early cataloging of ESI allows more time to identify costcutting measures – Utilities can catalog even prior to collection • Negotiate with tech vendors – Filtered ingestion [date range, file type] – Sensible pricing structures – ESI qty pricing consistency [Base 10, or power of 2? ] • Hosted review platforms – A variety available, cost and efficiency vary, select the best for the matter 8