Conquer the Costs of Ediscovery

Step 1: Map Your Data

To get a handle on ediscovery costs, you have to know what data you generate and where it resides. You need a data map.

Data mapping involves documenting systems that generate data, tracking where that data lives, and defining retention practices to govern its lifecycle. Here are some important things to keep in mind as you build your map:

• Start with data that is most often subject to discovery obligations, like email
• Note which data sources are easiest to collect/preserve from, and which sources are most complex (and potentially costly)
• Capture frequently asked questions and create a resource document that answers them and provides detailed steps on responding to a request to collect data
• Don’t assume you’re aware of every data source; circulate custodian questionnaires independent from your legal hold to identify additional devices, applications, or repositories that aren’t “approved”

Data mapping is an iterative process; you’ll add to it as you conduct interviews and add new data storage tools. Data maps are also an important resource when evaluating new applications, since they will help you create processes for preserving, collecting, and producing evidentiary data from these new systems. This way, you’ll always not what data you’ve got and how to manage it.

During custodian interviews, these key questions will help you verify data creation and retention practices:

• Are you using any personal devices or applications for business purposes?
• Have you stored or accessed data anywhere outside the company-approved list of repositories (e.g. collaboration tools or cloud storage)?
• If so, does any of that externally retained data include personally identifiable information (PII) or payment card industry (PCI) data?

Step 2: Create a Litigation Response Plan

A detailed response plan is an important step toward reducing the cost of ediscovery. The right plan:

• Helps to prevent losing or damaging evidence, protecting you from evidentiary spoliation and costly sanctions
• Empowers and unifies multidisciplinary teams that may include Legal, IT, HR, and other impacted business units
• Accelerates resolution timelines and improves litigation outcomes
• Reduces the uncertainty that often leads to inaction

Those are the goals of a great litigation response plan. Here are the specific elements that your plan should address to produce better outcomes and reduce the cost of ediscovery:

• Triggers for a duty to preserve
• How legal holds are triggered and managed
• Collection strategies for your entire tech stack
• Flags for most costly or burdensome data sources for collection, and recommendations to avoid using them
• Procedures for kicking off new ediscovery projects, including the formation of your response team, orienting outside counsel, and case-specific review protocols
• Standard discovery timelines
• Cybersecurity and privacy controls

Step 3: Govern Your Information

To reduce the cost of ediscovery, it is essential that you limit the volume of data you keep and ensure that data is organized in a usable, accessible format. Great Information Governance helps you get there.

Information Governance provides a reference guide for where data lives and how long it is saved within your ecosystem. Info Gov thus impacts every part of the organization, and your strategy should be adaptable to the introduction of new data sources and repositories that result from technology investment.

Information Governance cuts ediscovery costs by reducing the amount of data you store with sound retention/deletion policies and flagging the most common data sources for ediscovery. This precision helps control over-collection, the amount of data you store, and amount of data you send to outside counsel for review. Your Informaiton Governance plan should include:

• Guidelines for data storage that include provisions for regulatory compliance, records management, and legal obligations
• Deletion policies for aged, redundant, or obsolete data
• Retention schedules organized by data type
• Policies for adherence to retention/deletion schedules
• Policies for suspending deletion when preservation policies arise
• Strategy for releasing data holds that includes the deletion of unnecessary data

Step 4: Utilize Early Case Assessment

Most preservation and discovery obligations are subject to negotiation—but you must come prepared with a comprehensive knowledge of the data involved in a particular case, its costs, and its value. Early case assessment (ECA) arms your legal team with:

• Metrics to understand and predict ediscovery costs
• The scope of the matter to inform decision-making
• Input from stakeholders across the business on the validity of claims and the extent of your exposure
• Initial analysis of data most relevant to the matter
• Strategies to meaningfully impose proportionality limits on that data through criteria like file types and data ranges
• Robust search terms to identify the most relevant data and tests to understand the challenges of collecting it

The metrics that move the needle on ediscovery costs

• The volume of data you routinely collect for common types of matters
• The number of custodians you typically engage
• The cost of preservation, collection, process, review, and production for each type of electronically stored information (ESI)
• Limits that can be applied to standard discovery responses to fast-tracke processes

ECA not only prepares you for negotiations but also gives your team several different strategic options to help control costs throughout the litigation process:

• Phased discovery, limiting initial production to the most relevant custodians an issues for faster resolutions to preclude subsequent discovery
• Disclosures that focus initial production on key claims and defenses where sufficient discovery is already available
• Opportunities for investment in the right ediscovery software to fit your needs

Great Preservation: The Key to Cost Savings

Every step to saving costs in ediscovery revolves around excellence in preservation. Without it, you expose yourself to spoliation sanctions, inefficiencies, and money spent processing high data volumes. Here’s a handy reference for getting the most from your preservation process.

Practice Legal Hold Excellence

• Include clear instructions for custodians
• Issue regular reminders to drive compliance
• Create FAQs and detailed answers for custodians
• Clear escalation policies
• Conduct and track custodian interviews to identify additional data sources
• Automate wherever possible
• Timely release of holds when appropriate

Preserve and collect in place

• Lock down deletion policies at the data source to avoid collecting or preserving multiple data copies
• Use ediscovery software to filter data by file type, data range, or storage location
• DeNIST and deduplicate data prior to collection

Create Ediscovery Repositories

• Support better cybersecurity practices with secure data locations
• Reuse data for future matters, especially for “serial custodians” that are often subject to multiple matters, to minimize future collections
• Retain review results from past coding decisions like confidentiality and privilege to presumptively code documents applied to a new case

The Next Step—Efficient Culling and Review

• Bring initial processing and culling in-house to minimize data sent out for review, where 70% of ediscovery costs are incurred
• Utilize an experienced review team familiar with your organization
• Consider a hosting platform from your review team to reduce overhead costs associated with third-party processing and storage
• Invest in AI capabilities like concept clustering and predictive coding to create better search protocols and generate statistical analyses

Step 5: Don’t Stop with Ediscovery

Many legal teams are finding synergies in their ediscovery initiatives by looking beyond litigation response and leveraging their expertise in support of additional business functions such as:

• Responding to regulatory inquiries
• Subpoena and record requests
• Internal investigations and cybersecurity incidents
• Privacy audits
• Data access requests
• Due diligence for mergers, acquisitions, and divestitures

Often, these related business processes present challenges that are similar to those you’ve already overcome in ediscovery. You may find that your ediscovery knowledge, skills, and tools are directly applicable to assessing where data exists within the organization, ways to access and review that data, and refining risk-mitigation tactics along the way.

By managing both standard data practices in your organization and the approach you take to individual litigation matters, you can reduce the costs of ediscovery and extend the benefits of those efforts to other business initiatives.