By: Jeff Dreiling
One lesson we learn as we progress through life is that we are all different. What works for me may not be best for you. Finding the perfect “one size fits all” solution is the holy grail for most businesses and clients. By making a process predictable and repeatable, we gain efficiencies in time, money and general likelihood of success.
Unfortunately, eDiscovery makes a one size fits all solution difficult, if not impossible. That’s not to say there aren’t plenty of eDiscovery providers out there selling a magic widget, it’s just that the magic widget is likely to cause you problems because each case, and the data arising from the case, is so different.
Because of this, we tend to focus on hitting universal checkpoints along the way with our clients, instead of trying to force each of them into the same process with the same solutions for each case. Over the past 6 years, we’ve learned that the most important checkpoints come early in a case.
Here are 3 tips to make your next eDiscovery experience the best one yet.
1. Involve your eDiscovery team/vendor early in the case.
If you wait until you have an RFP or a hard drive in hand, you’ve missed opportunity number one to control your data. (Don’t do this!)
The most control we have over your budget is before any productions have been requested or made.
Whether you are on the Plaintiff’s or defense side of a case, your eDiscovery spend on a matter will largely be determined before you even start reviewing data. By consulting with the case team early in a case, a trained and experienced eDiscovery expert can save you exponential amounts of time and money.
This is achieved by:
- Understanding the merits of the case and your case strategy
- Knowing the places where responsive data is most likely to reside
- Ultimately, helping to determine what’s important and what isn’t
From a requesting party’s side:
This looks like helping to focus the initial RFP on the source or sources that are likely to be most relevant.
If you know that emails and text messages are the only sources to likely contain important information, don’t ask for CRM, social media and instant messenger data until you need to. By starting your investigation on the sources that are most likely to yield results, you save time and money for both sides of the case, but also allow yourself to investigate the actual data before asking for more.
If you are the producing party, the same strategy can work with custodians:
If you receive an RFP requesting all 56 employee’s data from a small business you are representing, suggest they pick 10 to start with and allow them to come back and ask for more as the data warrants.
This not only helps to focus your case team on collecting and reviewing the most important data first, it also allows you to start with a much smaller set of data, which will help decrease your spend throughout the entire lifecycle of the case. Even if they come back later and request you produce the other 46 employee’s data or request production from the CRM and messenger apps, you still saved the money of storing and processing that data for some period of time.
2. Understand the costs associated with each stage and ask for an updated budget often.
As I noted earlier, no two cases or datasets are alike. Because of this, budgeting has been a historical pain point for law firms and vendors alike. The problem is that nobody knows how much a project is likely to cost until we get into the data. For this reason, we have adopted budgeting by stages. Once we have enough facts to provide relative cost certainty, we provide a budget, but it looks different than most.
When evaluating a case, we break it up into 3 distinct stages for budgeting purposes.
- Depending on when you engage your vendor, you may ask for budgets for the consulting phase that will get your ESI protocol written and negotiated and also get you support for any data mapping or records custodian depositions.
- With relative ease, this number can be estimated fairly early in the process.
2. Collections, processing, hosting
- This portion of your budget is impossible to estimate at the beginning of your case, but after consulting we are able to accurately predict the spend during this phase, whether working for the requesting or producing party.
- The review portion (for both sides) is where the bulk of the time and money is spent.
- Once data makes it to the review phase, you are likely to pay for it for a long time. That’s why our goal is to get all datasets as small as possible, as quickly as possible to help our clients use their resources in areas other than data storage.
By asking for and holding your vendors accountable to budgets, you can start to gain the trust of your end clients and gain confidence in explaining the entire process and associated costs to them.
3. Design your review process with the end in mind.
There are lots of options when setting up your review process. A firm that has 20 reviewers ready to go and a collection of 5,000,000 documents has much different needs than a law firm with 5 reviewers and 20,000,000 documents.
Each case is unique, but if you begin your process with the end in mind, the results will stun you.
Before we even help write the RFP, we like to know what the review will look like:
- Are we going to use Technology Assisted Review (TAR) to help identify relevant documents?
- Will we need to hire an outside review company to do the first pass?
- Will the tags we set up in your database allow for logical productions when the time is right?
These and many more questions are important to know early in a case, but the biggest reason why the review design process matters is it is the single most important factor in determining your overall budget. 90% of “eDiscovery spend” is spent on the actual review of the documents. Collections, processing and hosting fees combined will be 10% of the overall spend on average. For that reason, beginning with the review in mind will allow you to make the best decisions for your budget from the start.
Set Yourself Up for eDiscovery Success
We’ve learned these universal checkpoints the hard way, so you don’t have to. While there are few clear cut, easy answers in eDiscovery, these tips will make your next eDiscovery experience the best one yet.