A multi-part series on targeting the right data to reduce your downstream review costs
eDiscovery continues to evolve but remains a costly endeavor. A 2010 Litigation Cost Survey found “average discovery costs were as high as $2.4 million and the average discovery cost over all reporting companies was well in excess of $600,000.” A frequently cited 2012 Rand Corporation study found the median cost of eDiscovery production to be $1.8 million. Another study from 2014 found that preservation costs alone for a large company could exceed $2 million per year.
The 2012 Rand Corporation study also found that document review was definitively the most expensive phase of an eDiscovery project, typically accounting for about $0.73 of every $1.00 spent on eDiscovery. The study concluded that, because of this disparity, “the relationship between final costs and ESI volume is essentially a directly proportional one.” So, if you want to reduce the cost of discovery, reducing the volume of documents that make it through to the review phase, by targeting the right ones in each prior phase, should be your first priority.
To more-narrowly target the right data prior to review, there are a range of tools and techniques available to you in each prior phase: before litigation, during collection and restoration, during processing, and during early case assessment and review preparation. To leverage these tools and techniques effectively, you will need to think about discovery as more than just a legal activity: you will need to think about it as an information management and retrieval exercise as well. Each project is a funnel that begins with preserved data and ends with produced data, with various filters and screens used to reduce the volume during each phase as it descends.
In this short series, we will review the key data targeting options available to you in each project phase, from simple data mapping to full technology-assisted review. We begin in this part with the period before litigation has begun.
Before litigation has begun, there are three areas in which you can take action that will enhance your ability to target the right data when litigation does arise: retention; remediation; and, data mapping.
The first determinant of how much data may need to be reviewed for an eDiscovery project is how much data your organization has retained. Organizations without clear policies and procedures for retention and destruction of their business records and communications routinely retain far more material than is required, including extensive duplicative materials. The more data you retain, the more data you will have at the top of your funnel when you begin an eDiscovery project and the more data will make it to the bottom of the funnel for review. Establishing policies that define categories of materials and set appropriate retention periods and procedures for each will ensure that less excess data exists for each project, while also providing you with greater knowledge of what there is and where it is.
If you already have retention policies (or after you’ve established some), the next pre-litigation activity you can undertake is remediation of your organization’s existing data stores. Remediation is the process of going through currently retained data to identify what older materials can be eliminated, in accordance with the organization’s retention policies, active legal holds, and other obligations. All old data that can be defensibly eliminated is more data that will not need to be preserved, collected, processed, or reviewed later.
Whether you organization is able to undertake retention and remediation activities or not, proactive data mapping is still available as an affirmative step you can take to facilitate effective data targeting when litigation arises. The more information available to you about what you have and where it is, the more narrowly and accurately you can target what gets preserved and collected for the top of the funnel. An effective litigation data map will document all of your potential organizational sources, what kinds of materials they contain, from what time periods they contain them, and what search and collection options or limitations are applicable. In addition, such a map will also typically document responsible individuals, automated janitorial functions, and information about computers and other devices issued to employees.
Upcoming in this Series
In the next Part of this series, we will review options for targeting the right data during collection, restoration, and processing.