Electronically stored
information's ("ESI") explosion and e-discovery's skyrocketing costs
have radically altered the playing field.
To avoid e-discovery landmines,
take full advantage of the new wave of e-discovery rules and technologies, and keep
e-discovery costs as low as possible, planning ahead, knowing your data and
cooperating with opposing counsel early in the discovery process is critical.
Skyrocketing Costs
Discovery comprises 70
percent of total litigation costs in cases that are not tried, litigants spend approximately
$18,000 to collect, process and review a single gigabyte of data, and larger
cases' potentially responsive data measure in the hundreds to thousands of
gigabytes.
Moreover, in 2009,
e-discovery sanctions were awarded in more federal cases than in all the years
before 2005 combined, with a $1 million "e-discovery mismanagement
sanction" issued in the In re
Pradaxa Products Liability Litigation in late 2013.
Proposed "E-Discovery" Model Orders
Over the last 3 years, more
than two-dozen federal courts, including the District of Delaware, the Eastern
District of Texas and the Northern District of California, have utilized local
rule-making powers to enact e-discovery model orders and guidelines.
The new rules call for phased
ESI discovery, limits on email discovery and preserving and collecting certain
categories of ESI, increased cooperation between litigants on e-discovery
issues, and enhanced cost-shifting provisions to discourage e-discovery
overreaching.
While imposing new
obligations on litigants, the new rules also create significant opportunities to
secure rational and cost-efficient e-discovery frameworks tailored to the case's
circumstances and transparently describe what will be covered and why.
Taking advantage of the new
rules requires extensive planning at the case's outset including: realistically
assessing risks posed by litigation and own discovery needs; understanding
where own relevant data resides, how much there is and difficulty of collecting; crafting a comprehensive,
justifiable e-discovery plan including limits on noncustodial ESI sources need
to be preserved and collected, ESI custodians, and email discovery.
While significantly reducing
the volume of ESI that ultimately will need to be reviewed, these limitations also
restrict the discovery that may be obtained from other parties.
Advanced E-Discovery Tools
One of the market's hottest
e-discovery tools is "predictive coding", in which, after humans code
an initial subset of documents, the computer “learns” what is relevant from the
human coding and applies it to other documents via a designated algorithm.
While requiring up-front
effort, when dealing with a large volume of documents predictive coding substantially
reduces the amount of data requiring expensive human review and curbs
e-discovery costs.
Because the law governing e-discovery
tools is rapidly evolving, litigants must tread carefully, plan ahead and negotiate
with opposing counsel early and transparently.
Other parties will need to
know what you plan to search, how you plan to search it and who (or what) will
determine responsiveness.
While often resulting in wider
breadth of disclosed information, courts are conditioning their approval of
this technology on such transparency.
