Anticipation of Litigation Advisor

5+ Tips for Managing E-Discovery Costs for a Small Case

September 24, 2019

By: Laurie K. Miller

Most cases are not multi-national corporation against multi-national corporation. Most cases do not have tens of millions of dollars at issue. Most clients do not have giant e-discovery budgets. In fact, most cases in litigation today are significantly smaller, generally with just thousands of dollars at issue, and cannot withstand a giant e-discovery bill. So, what are the lawyer and client to do with a small case that has e-discovery needs? Here are five tips that may help.

Start by doing your homework on your client and its electronically stored information (ESI). You’ll likely have done some of this already as you work to advise your client on its preservation obligations. Know who your likely custodians of relevant information are and know where ESI is likely to be. You will want to identify emails, networks, hard drives, cloud storage, tablets and other locations where custodians may store data. Learn about your client’s IT structure and what types of ESI are likely to be available and what sources may be “inaccessible,” like back-up tapes. Having a good sense of relevant time period, custodians and data storage locations will go a long way toward controlling costs.

Coordinate with opposing counsel. Controlling costs requires cooperation, and this cooperation starts in the Rule 26(f) conference. Going into the 26(f) conference with a good idea of how you will propose to limit the time frame for discovery, the relevant custodians and data sources will go a long way to controlling costs by limiting the amount of data to be collected. In addition to limiting by time, custodian, and source, consider working with opposing counsel on an agreed set of search terms for the data. The more focused the search terms, the better in terms of cost control because data collected will be further limited. While developing search terms, begin with your case in mind. Know what kinds of documents you need to build your case, and make sure to work those searches (and identify those custodians), too. Agreeing on as much as possible up front can also have the effect of limiting future discovery battles.

Finally, agreeing on the form of production can have a major impact on discovery costs. Whenever possible, agree to produce in native format. Opposing parties who demand production in single page TIFF format, for example, could result in doubling the size of the dataset (or more). This is because, in addition paying to host the original, native document, you also must host the produced images. Form of production can have a major impact on overall project cost.

Work with your client, IT department or vendor to cull, de-duplicate and deNIST (tool used to identify computer files known to be unimportant system files and remove them from your document collection) the data that has been collected before pulling the data into the review platform (which will start your per-GB charge rolling). The narrower the data set going in, the lower the overall cost will be, both up-front and in subsequent months.

The biggest expense in e-discovery is typically the actual document review and production. Give careful consideration to the coding panel for the review. A good coding panel can save time, headache, frustration and fees. Too often coding panels are developed too narrowly at the outset, tied only to specific discovery requests from the opposing party, relevancy or privilege. Incorporating tags related to the elements of a claim or defense (for example) make it easier to find the documents needed to develop your client’s case from your client’s own documents. Spend time deciding on coding specific issues, claims and/or defenses important your case.

Also, consider including a tag in the coding panel for “advanced” or “second level” review. These documents can go to more experienced reviewers. This will also ensure that the more experienced (and probably more expensive) reviewers are reviewing only documents that demand their level of expertise.

To save overall discovery costs, documents can be batched to reviewers strategically to develop subject matter or witness expertise. For example, batching one custodian’s documents to the same reviewer can result in developing a subject matter (or witness) expert for your case, which will save time when preparing for depositions. If you have a case with lots of spreadsheets and financial documents, those can all be batched to a reviewer skilled in reviewing such documents to save time (and maximize overall understanding of the documents). If the case is big enough, or if you are paying an “all-in” price to a vendor, consider using predictive coding or technology assisted review (TAR) to move through the review more quickly.

Finally, make sure to keep an eye out for how long you really need to maintain your platform. Outside vendors generally charge per month. For a really small case, do as much work as you can up front, then send the data to the vendor at the first of the month. Do your review as efficiently as possible, make your production and then move the data to a cheaper storage option (sometimes called “nearline” or “cold storage”). Remember to discontinue any user licenses after completing your production. Production sets can be saved outside the platform. This will sometimes result in losing your tagging, but in a really small case, this may not matter.

E-discovery does not have to be expensive, but it does require careful and thoughtful planning and coordination with both opposing counsel and your client. One last consideration to keep in mind is that cost shifting can be an option if the opposing counsel insists on driving up discovery costs. See Tafolla v. County of Suffolk, No. CV-17-4897 (E.D.N.Y. July 8, 2019) available at https://www.logikcull.com/public/blog/Taffola-v-County-of-Suffolk-Cost-Shifting-Order.pdf

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