1. Addressing Costs and Risks in Electronic Discovery
Introduction
ESI and E-Discovery
The Electronic Discovery Reference Model (EDRM)
EDRM
Where are the costs?
Where are the risks?
Best Practices 1

2. What Is ESI and Where is it?
Location
Documents (MS Word, PDF), Spreadsheets
Computer Hard drive, File server, server (attachment to ), Cloud s
Computer hard drive, Server, Cloud
Text Messages
Service provider (AT&T, Verizon, etc.), phone
Pictures, Videos
Phone, Computer hard drive, server, Cloud 2

3. Bits and Bytes Typical hard drive sizes: 320GB - 500GB
1 GB = approx. 64,000 pages in Microsoft® Word® or 100,000 s
Tera=1 thousand GB (1,000,000,000,000)
Peta=1 million GB (1,000,000,000,000,000)
Exa=1 billion GB (1,000,000,000,000,000,000)
Zetta=1 trillion GB
Yotta=1 quadrillion GB 3

4. Why Is ESI Important? Data is exploding at an astounding rate
90% of the data in the world has been created in the last two years.1
Multiple analysts have estimated that data will grow 800% over the next five years
Computer World states that unstructured information might account for more than 70%–80% of all data in organizations 4

5. Why Is ESI Important?
From the dawn of civilization to 2003: 5 exabytes (5,000,000,000,000,000,000) of information; Today: 5 exabytes is created in just two days!2 And increasing…
It was estimated that by 2012, the digital universe of data was to have grown to 2.72 zettabytes (ZB) and will double every two years to reach 8 ZB by 2015.
For perspective: That’s the equivalent of 18 million Libraries of Congress. Billions of connected devices—ranging from PCs and smartphones to sensor devices such as RFID readers and traffic cams—generate this flood of complex structured and unstructured data* 5

6. Cost Of E-Discovery Sedona Conference Study (2007): $30,000/GB
Gartner Group (2012): $18,000 /GB
RAND Study (2012): $17,477/GB

7. Hypothetical 10 custodians: 30 GB (3 GB per custodian)
40 GB Network and other ESI
Approximately 3,500 files per gigabyte
245,000 documents

8. Rand Study
Allocation of Costs

9. Hypothetical (cont’d)
Collection: $10,000 ($500 per custodian + other)
Processing: $23,750 (Approximately $300/GB)
Review: $91,250 (Volume reduced during processing)
Total $125,000

10. Rand Recommendations
Adopt Computer Categorization to Reduce the Costs of Review in Large-Scale E-Discovery Efforts
Improve Tracking of Costs of Production and Preservation
Bring Certainty to Legal Authority Concerning Preservation

11. Where Are The Majors Risks In E-Discovery?
Analysis of 193 E-Discovery Cases involving a motion for sanctions:
Information Management/Records Management: 97 cases
Identification/Preservation/Collection: 173 cases
Processing/Review: 9 cases
Production: 7 cases 11

12. Risks: Recent Cases
Day v. LSI Corp., No. CIV TUC-CKJ, 2012 WL (D. Ariz. Dec. 20, 2012)
Defendant failed to preserve:
GC “willfully failed” in duty to preserve of key custodian
Didn’t follow their own document retention policies
Result
Partial default judgment
Adverse inference
$10,000 to Plaintiff to pay for additional legal efforts 12

13. Risks: Recent Cases
Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL (D. Neb. May 18, 2012)
Defendant performed inadequate searches
Defendant wrongly discarded a relevant server
Result
Defendant ordered to pay for forensic examination
Recommended adverse inference
Monetary sanctions 13

14. Risks: Recent Cases
Branhaven LLC v. Beeftek, Inc., ---F.R.D.---, 2013 WL (D. Md. Jan. 4, 2013)
Plaintiff guilty of wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) – format of production
Plaintiff certified they had adhered to the production protocol – when they had not
Plaintiff delayed production until a few days before 30 (b)(6) depositions
Plaintiff sanctioned for costs incurred to defendant 14

15. Risks: Recent Cases
Scentsy Inc. v. B.R. Chase LLC, No. 1:11-cv BLW, 2012 WL (D. Idaho Oct. 2, 2012)
Court: Plaintiff’s document retention and litigation hold (verbal) polices “clear unacceptable”
Willing to recommend adverse inference or even dismissal if spoliation occurred
No written litigation hold
No formal document retention policies regarding file deletion 15

16. The EDRM Framework

17. Best Practices: Information/Records Management
IM/RM Is Not matter-specific
Have a policy based on internal business continuity needs, regulatory requirements, etc.
Make RM someone’s responsibility - even if it’s part-time
Leverage information in your RM to aid in litigation readiness: where custodian data resides (datamaps)
Identify a litigation response team (LRT) - Legal, IT, HR, management 17

18. Best Practices: Identification
Communicate clearly who the custodians are and what kind of ESI is sought
Reduce guesswork by asking for clarification
Meet and Confer.  Identify:
Custodians - inner circle, peripheral
Candidate relevant ESI - s, documents, date ranges
Potential search terms
Production formats - how will each review produced ESI

19. Best Practices: Identification (cont’d)
With internal Litigation Response Team (LRT)
Identify where relevant ESI may be
Use data maps from RM
, ESI on hard drives, network drives, document management systems, etc.
Determine preservation and collection strategy
Preservation may need to be ongoing
Does collection method need to preserve metadata? 19

20. Best Practices: Preservation
Legal holds
Send notifications
Enforcing the holds
Remember to close

21. Best Practices: Collection
Defensible collection - drag and drop copy may not be sufficient
Native productions
Metadata important: fraud
Contentious/high-profile
Dates/times are important
Employment 21

22. Best Practices: Processing
Data: Technology
Information: People
Combination of Both: CAR/TAR

23. Best Practices: Processing (cont’d)
Predictive Coding
Training
Testing
Execution

24. Best Practices: Review
Have Review Manager be a part of the process from the beginning
Better, Faster, For Less
Be Prepared
Technical Issues
Downtime
Spend to Save

25. Best Practices: Analysis
Statistical v. Substantive
Reporting
Custodian (Total docs <Reviewed> = To Be Reviewed)
Reviewer (Docs/hours = dph)
Other analytics (budget control etc...)

26. Best Practices: Production
Likely convert to .tiff or .pdf for production      
Strategy: Why make it easier on other side?
Watch out for embedded files, hidden information etc...

27. Best Practices: Presentation
Non-courtroom presentation (could include depositions)
Document summaries, chronologies, witness/custodian memorandum, notebooks
Courtroom presentation (could include depositions)
Exhibits - Graphics, animations, etc.

28. Best Practices: Project Management
Experience in E-Discovery project management
Attention To ESI handling throughout
Attention to audit trails and chain of custody
Budget and Time Sensitive
Experience managing and motivating people

29. Transitioning between stages
Information Management to Identification
Identification to Preservation/Collection
Processing to Review/Analysis

30. General Tips
Consider hiring a consultant - may not need for every matter, but for big, complex ones or the first one, it may be a good idea
Process Improvement
Matter-specific
Scalability

31. General Tips
Consider an agreed-upon ESI protocol - even something as simple as a checklist can help
Estimating E-Discovery Costs (

32. Recovering E-Discovery Costs
Document All Procedures
Demonstrate Efficiencies
Courts have allowed for recovery of imaging costs when both parties had a mutually agreed protocol
Courts are less open to re-imbursement for ESI searching and production 32

33. Wrap Up Key Points Lower costs at preservation, processing and review
Lower risks by focusing on transparent processes, sound ESI handling procedures and effective review management 33

34. References
Sure, information has value, but don't forget the risks By Deidre Paknad - Computer World May 7, 2013
Gartner Group
Rand Institute for Civil Justice, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras (2012)
Big Data: The Next Ontier For Innovation, Competition, And Productivity - McKinsey & Company, 2011 Study
Herbert L. Roitblat, Search & Information Retrieval Science, 8 SEDONA CONF. J. 192, 192 (Fall 2007).
Will Uppington, E-Discovery 911: Reducing Enterprise Electronic Discovery Costs in a Recession, E-DISCOVERY 2.0, (Feb. 20, 2009, 4:40 PM),
Jardin v. Datallegro, Inc. 08-CV-1462-IEG, 2011, (S.D. Cal. Oct. 12, 2011

35. Written Materials Available at: www.OneSourceDiscovery.com

36. Contact Andy Cobb, PhD Erin Corken, J.D. andy@onesourcediscovery.com
Erin Corken, J.D.