Document Review, Technology

What We Can Do About The Wasteful Processes In E-Discovery

Here are the right questions to ask when presented with new software for assisted review, according to technology columnist Jeff Bennion.

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A few weeks ago, Logikcull posted an open letter titled “It is time to put an end to eDiscovery.” The letter goes on to describe how “eDiscovery” (in quotes) is a strain on the system and causes waste and needlessly drives up litigation costs. The letter asks to put an end to “eDiscovery.” Reading the letter, what it’s calling for is the end of the bundle of wasteful practices that constitute “eDiscovery,” not the literal end of exchanging electronically stored information (ESI):

But as the data landscape changes dramatically, the proprietors and pushers of eDiscovery remain the same, seeking to fix new problems with the same old solutions and a fresh coat of paint…Our profession must embrace technology that provides the security, economy, transparency and access that a vibrant democracy deserves.

Legaltech News did a piece (and Logikcull did a counterpiece) responding to the open letter. Legaltech News included a section discussing how Logikcull is wrong, and how e-discovery has actually become more efficient as new technology allows for efficient ways to “identify and analyze electronically store information…far better than in the paper discovery days.” You know what? I totally agree with that guy who said that. He’s right that we have new software tools to sort ESI faster and float hot docs to the top and he’s right that sorting through 1,000,000 electronic documents is better than sorting through bankers’ boxes of paper and putting post-its on hot docs. But, that’s not what Logickull is talking about.

If you have ever been to a CLE on e-discovery, you’ve probably heard about the Rand study that looked at e-discovery costs across the country. They concluded that 73% of all e-discovery costs come from doc review, 8% come from collection, and 19% of costs come from processing. So, when Logikcull says: “But as the data landscape changes dramatically, the proprietors and pushers of eDiscovery remain the same, seeking to fix new problems with the same old solutions and a fresh coat of paint,” they are talking about vendors using old solutions to keep up with growing demands – the 8% and 19% of the pie. LTN comes back with, “Not true, doc review is getting more efficient.”

Why Is This So Important?

Back in the olden days (2010 or so), e-discovery was mostly a mass tort/class action problem. Now, it’s becoming more commonplace in smaller cases. So, what do you do if you are a party in a $200,000 breach of contract case and you get a request for production for e-mails going back 5 years for 15 custodians with XYZ search terms, in native format and with mapped TIFFs that are Bates-stamped and produced with load files, de-duped and reviewed with non-relevant material removed? Settle? Move for a protective order? Let’s say that the yield is 30,000 non-duplicative items. You decide to review them in house to save money. You are still looking at tens of thousands of dollars to collect, extract, and process that data into a production with load files. If the documents are crucial to the case, your proportionality argument might succeed only in narrowing that scope a little bit.

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What Can We Do About It?

So, we’ve all been dazzled (when you work in e-discovery, you have a low bar for all things exciting) with the latest software for assisted review. It’s efficient, it’s neat, and it works great. But what about the other 27% of associated costs? The next time a vendor tries to show you how you can cut time with the review part, ask about the tools they offer to save time with collection and processing.

  • Ask what tools they use to process .PST and .OST files (Outlook e-mail files).
  • What about compressed files (.rar and .zip)?
  • Ask about the turnaround time for uploading new documents to the online repository and OCR time.
  • Once the client has identified new responsive files, what needs to be done to get them to the vendor to upload for the attorneys to review for privilege/relevancy?
  • With all of the technological advances, what has been done to increase efficiency in the collection and processing phases?

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On a semi-related note, this Friday, I will be doing a webinar with Logikcull on tips for working with e-discovery and some malpractice traps to avoid. It’s free, so sign up here.

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Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by email at jeff@trial.technology.

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