The Attorney Controls the Scope and Cost of E-Discovery

Peterborough, NH (PressExposure) September 08, 2009 -- The most expensive part of almost any e-discovery project is the cost of attorney review time. This is as it should be, since the client is best served by having the highest percentage of its discovery budget go toward the development of legal expertise rather than having it go toward vendors and logistics. Nevertheless, because the cost of attorney review drives the cost of discovery, it must be controlled.

On any review project, the supervising attorney has the power to control the cost by defining the scope of the collections to be processed and how aggressively they will be culled for review. In short, the attorney controls the size of the review set and thereby controls the cost. The attorney does this by specifying which custodian collections will be processed and what filter criteria will be applied. The attorney has the ability to adjust those criteria to create a review set that is cost-appropriate in light of the amount in controversy.

The cost of discovery must be proportionate to the value of the dispute. If not, ediscovery becomes unduly burdensome by definition. A party should not be forced to conduct a million-dollar review for a dispute that is only worth $100,000. To avoid such a scenario, the supervising attorney scales back the cost by tightening the criteria. This can be done by reducing the number of custodians, narrowing the date range, limiting the number of keywords, or reducing the generality of the search criteria.

The attorney avoids the risk of spoliation by preserving everything that is potentially responsive (even if of limited importance), since preservation by itself is much cheaper than processing and review. The attorney avoids the risk of disputes and sanctions by disclosing to opposing counsel the criteria that will be used to create the limited subset that will be reviewed for production. Preservation plus disclosure is the attorney's protection.

If, after such disclosure, there is a disagreement about the scope of what will be reviewed, the parties can resolve it by negotiation or by motion before the cost of review is incurred. If the scope turns out to be too narrow, the attorney can broaden it accordingly since the larger universe has already been preserved. Finally, if subsequent review of the initial production set reveals that the criteria were too narrow, the production can be supplemented incrementally from the universe of preserved materials to the extent appropriate.

The element of disclosure ensures that both parties are aware of the initial limitations on the scope of what will be reviewed for production. The parties typically agree to start with a core list of key custodians and a focused set of criteria that are closely correlated to relevance (names of key participants, related company names, product names, project names, patent numbers, etc.). The parties agree that they can make follow-up requests after they have had a chance to review the results of the first production.

Here is a roadmap of the approach: • Preserve the pool of what is potentially relevant (even if of low importance) because preservation is relatively cheap. • Within that pool of preserved materials, identify the collections that are most likely to yield the evidence that matters. • For that subset, develop culling criteria that are expected to be well correlated with relevance. • Disclose to the opposing party the custodians, repositories, and proposed culling criteria to be used as the basis for creating the initial review set for the first production. • Negotiate with the opposing party to refine and finalize those criteria. • Agree that after the first production has been made, the parties may make reasonable supplemental requests based on what they learn from the first production. This can include identifying additional key custodians, additional search terms, etc. • Since the larger pool of potentially-relevant materials has been preserved, the supplemental production requires only the incremental addition of those additional custodians, repositories, or keywords.

© 2009 James Berriman. Please note that this blog post does not constitute legal advice.

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Press Release Submitted On: September 08, 2009 at 1:49 pm
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