eDiscovery Daily Blog

• March 28, 2013

By now, Craig Ball needs no introduction our readers as he has been a thought leader interview participant for the past three years.  Two years ago, we published his interview in a single post, his interview last year was split into a two part series and this year’s interview was split into a three part series.  Perhaps next year, I will be lucky enough to interview him for an hour and we can simply have a five-part “Ball Week” (like the Discovery Channel has “Shark Week”).  Hmmm…

Regardless, I’m a regular reader of his blog, Ball in your Court, as well, and, last week, he published a very informative post entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  I thought we would cover those tips here, with some commentary:

1. Eliminate Waste: Craig notes that “irrational fears [that] flow from lack of familiarity with systems, tools and techniques that achieve better outcomes at lower cost” results in waste.  Over-preservation and over-collection of ESI, conversion of ESI, failing to deduplicate and reviewing unnecessary files all drive the cost up.  Last September, we ran a post regarding quality control and making sure the numbers add up when you subtract filtered, NIST/system, exception, duplicate and culled (during searching) files from the collected total.  In that somewhat hypothetical example based on Enron data sets, after removing those files, only 17% of the collected files were actually reviewed (which, in many cases, would still be too high a percentage).  The less number of files that require attorney “eyes on”, the more you save.
2. Reduce Redundancy and Fragmentation: While, according to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months, Craig points out that “human beings don’t create that much more unique information; they mostly make more copies of the same information and break it into smaller pieces.”  Insanity is doing the same thing over and over and expecting different results and insane review is reviewing the same documents over and over and (potentially) getting different results, which is not only inefficient, but could lead to inconsistencies and even inadvertent disclosures.  Most collections not only contain exact duplicates in the exact format (which can identified through hash-based deduplication), but also “near” duplicates that include the same content in different file formats (and at different sizes) or portions of the content in eMail threads.  The less duplicative content that requires review, the more you save.
3. Don’t Convert ESI: In addition to noting the pitfalls of converting ESI to page-like image formats like TIFF, Craig also wrote a post about it, entitled Are They Trying to Screw Me? (discussed in this blog here).  ‘Nuff said.  The less ESI you convert, the more you save.
4. Review Rationally: Craig discussed a couple of irrational approaches to review, including reviewing attachments without hits when the eMail has been determined to be non-responsive and the tendency to “treat information in any form from any source as requiring privilege review when even a dollop of thought would make clear that not all forms or sources of ESI are created equal when it comes to their potential to hold privileged content”.  For the latter, he advocates using technology to “isolate privileged content” as well as clawback agreements and Federal Rule of Evidence 502 for protection against inadvertent disclosure.  It’s also important to be able to adjust during the review process if certain groups of documents are identified as needing to be excluded or handled differently, such as the “All Rights Reserved” documents that I previously referenced in the “oil” AND “rights” search example.  The more intelligent the review process, the more you save.

There is too much to say about these eight tips to limit to one blog post, so on Monday (after the Good Friday holiday) we’ll cover tips 5 through 8.  The waiting is the hardest part.

So, what do you think?  What are you doing to keep eDiscovery costs down?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.