Strategies For Minimizing E-Discovery Costs

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.