By: Jeff Dreiling, Co-Founder and eDiscovery Consultant, Complete Legal
eDiscovery, ESI, electronic discovery, ED, electronic data discovery, EDD, etc… Whatever you call it or whatever your experience is with it, don’t be alarmed. All of the words, phrases and acronyms above have been, and in most cases, still are, being used to describe the same process.
The good news for beginners or people who don’t engage in eDiscovery cases every day is that the process is a familiar one to us all. There are different words and acronyms. The volume of data is much larger. The particulars are sometimes more complicated, but the basic steps and the legal standards that we must hold ourselves accountable to are largely unchanged.
For simplicity purposes, we usually call the entire process eDiscovery and the data that is in question electronically stored information (ESI). The process for almost every case involving ESI is largely the same:
Steps to production – eDiscovery:
- Identify custodians and data sources (often times negotiated in an ESI protocol or RFP)
- Collect the data (can be done in person or remotely depending on the source of data)
- Process the data (extract and field the helpful metadata and normalize files for review)
- Review the data (usually done with a web-based database such as CloudNine, Relativity or ONE Discovery)
- Produce the data (following the agreed to format if ESI protocol in place)
Now, nothing is ever as simple as it seems and there are dozens of variables that may cause additional steps, but each case involving eDiscovery touches on those main milestone processes. I line these out because if you apply the same steps to paper-based discovery, they are remarkably similar. The steps, in fact, are exactly the same. The only differences are in how some of the steps are accomplished.
Steps to production – Paper:
- Identify custodians and data sources (file drawers, notepads, manuals)
- Collect the documents (put paper files in a box(es))
- Process the documents for review (scan or photocopy)
- Review the data (sometimes done with paper but often in a database such as Summation, Concordance or web-based alternatives)
- Produce the data (either in paper or usually in electronic format)
Handling ESI electronically saves you time and money
The best part about handling ESI in the discovery process completely electronically (web-based database for review and production purposes) is that it saves you and your client exponential amounts of money and time based on comparison to traditional paper-based discovery process. This may come as a shock to some of you that have either lived through or heard horror stories about the costs associated with eDiscovery. In actuality, there is no more expensive and slow process to get through discovery than by using paper. The reason eDiscovery gets the expensive label can be complex but is usually for one of the following reasons:
- A decade ago, storage, processing power and the general infrastructure required to handle eDiscovery were all exponentially more expensive than they are today. The advent of the “private cloud” that allows for companies like Complete Legal to purchase processing power and storage on demand and to adjust up or down in real-time has significantly lowered the costs and risks associated with eDiscovery providers and those savings are passed along to clients.
- There are options in the software space to get electronic files processed much more efficiently than in the past and there are now dozens of review database options available for law firms (instead of just 1 or 2 options we had in the last decade). This innovation has created more customization and has increased competition, therefore lowering cost and significantly speeding up the review process.
- The volume of data is continuing to grow at an amazingly fast pace. (Check out our blog post on this topic for some amazing stats). For this reason, we can compare the cost to collect, review and produce a couple of boxes of physical documents in 1998 to the same process today. What was 2 boxes around the turn of the millennium is now the electronic equivalent of several dozen boxes in the same type of case. The easy answer for why this happened is that people/employees/plaintiffs/defendants are creating much more information today than we did 15-20 years ago. Additionally, it is significantly easier and, in most cases, required, to retain electronic records for longer periods of time. What used to take a semi-truck full of boxes and an expensive contract with a box storage warehouse can now be accomplished on a $100 thumb drive. All of this adds up to more potentially relevant information to be considered in discovery. If we were still printing emails, scanning them back in or even photocopying them, physically labeling them and then making another copy to produce, the discovery process would cost significantly more today than in previous decades due to the sheer increase in the volume of data all around the world.
- Understanding – as humans, we are naturally fearful of things that we don’t understand. It’s true that there are amazingly deep complexities involved in some cases that involve eDiscovery. The truth is, however, that the vast majority of cases involving the discovery of some form of ESI, are done for a minimal amount of cost and in an extremely quick timeframe. Only the worst-case scenario cases seem to get the headlines and the writeups and those two things combined have caused the legal world to shutter at the words, the process and the thought of communicating this expense to your clients.
In closing, please know that there is nothing to be scared of when it comes to eDiscovery. We walk new clients through the process every day and can assure you that there is no reason to be fearful of the process or the costs. A little education goes a long way. If our team of experienced eDiscovery consultants can help educate you or your 5th grader, please don’t hesitate to reach out. Consultations and lessons are always on the house.
Note: This article originally appeared in the Kansas City Paralegal Association’s February 2019 edition of Paraview.