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Addressing Costs and Risks in Electronic Discovery

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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 (http://orangelt.us/estimator/pricing1.html)

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.


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