Controlling Rising Litigation Costs
In 2009 you will continue to see very large increases in the size of the discovery data sets. According to a study by McKinsey & Company, the demand for corporate data is growing by 50% per year. According to the ABA, 60 to 90% of the cost of litigation relates to first level review. This means that litigation costs in 2009 will continue to increase. Of course in a global economic recession, the “amount in controversy” will not increase by an average of 50% in 2009. As Magistrate Judge Paul W. Grimm writes in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008), “The goal is to attempt to quantify a workable “discovery budget” that is proportional to what is at issue in the case.”
If the size of the data involved in litigation is growing by 50% per year, the only way to effectively control litigation costs is to embrace the use of electronic discovery tools. The good news is that understanding and using the basic electronic discovery tools is relatively straightforward.
I have broken the basic tools into five main categories:
1. Data collection. How the data is collected will have a significant impact on the overall cost of the case.
a. Determine if you need a full forensic image (copy of the full drive; this will pick up deleted files as well as active files); or
b. Targeted File collection (also referred to as an Active File collection). Usually this collection method will avoid collecting system files.
2. Filter the data by custodian and/or date ranges. This means eliminate/suppress the data that is outside of the date range of the case. Also, eliminate/suppress the data for custodians that were inadvertently collected in the data collection but are not part of the case.
3. Cull out the system files. Suppress all system files. This usually accounts for a significant amount of the data collected. The only exception to this rule is if for some reason certain system files relate to the case.
4. De-duplicate the data. This will identify exact duplicates of documents and suppress them.
5. Search the data. Different search techniques are used for different type of cases. However, a key word search is still the most frequently used technique to identify relevant documents.
Here’s a recent example of the power of eDiscovery tools. We recently worked on a case in which we did a full forensic image of over 10 computers and laptops. The total data collected was over 1 terabyte. Using the first four eDiscovery tools listed above – collection, filtering, culling and de-duplication -- we reduced the data set to 150 gigabytes. Working with counsel on key word searching, we were able to reduce the 150 GB to 5 gigabytes. This represents a reduction of over 99% of the data size prior to attorney review. The attorneys reviewed the data and we produced one gigabyte of responsive data or under 50,000 documents.
In summary, embrace eDiscovery tools. Treat them as your NBF (“new best friend”). They will allow you to better control the rising cost of discovery as a result of the fact that corporate data is growing at a 50% annual rate.
