Legal Tech West Coast – what a wealth of information! On Wednesday, May 18, I attended the session given by Bill Speros, lead counsel handling all of the e-discovery and litigation processing matters related to the Madoff case. Certainly a case that gives him great credibility. Speros concentrated on risks and responsibilities in the management of the ediscovery process such as what to look for in keeping costs down and the allocation of responsibilities to all parties concerned.
He covered solutions on predictability vs. consistency; the merging of responsibility with authority; management of ESI attributes; and providing visibility into asymmetric knowledge and skills.
It is difficult for law firms to determine or even guess the exact cost of discovery with regard to predictability versus consistency. A set of data often thought to be manageable, often grows into a huge endeavor when ediscovery and labor costs escalate during the culling process. This is a critical point where the framing of the issues and negotiations between the opposing parties can help make culling options easier and less costly to manage.
Speros referred to the “what if costs”: those costs based upon fear or extortion factors generated by an aggressive opposing side. These factors add costs that are surprisingly reported to be about 40% -60% of the total costs of an ediscovery project. This statistic has raised concerns that expanded discovery could force settlements based upon costs rather than law. Often, cases have been settled as soon as one of the parties figures out it would be far more economical to pay rather than play.
Management of ESI Attributes
Law firms frequently give responsibility for managing a case to pivotal core people in the ESI phase such as a seasoned paralegal, staff attorney or onsite project manager. These professionals have hands-on experience running large document intensive ESI and database driven projects.
Provide Visibility in Asymmetric Knowledge and Skills
Personnel staffing ESI projects should be given clear lines of responsibility and be part of ESI planning and strategic management. They should be given a voice in meetings. Analysis of projects reveals teams that are successful are those that have been included in the execution of the project.
Knowing the source of the data can give you a certain idea as to the amount of data a particular custodian may have but it is not a definitive way of knowing the total amount that could be mined.
Starting off eDiscovery with a date range and a set of key words will certainly limit the amount of data at the “first bite of the apple” or at the source. However, if you do not get exactly what you are seeking and need to go back to the third party e-discovery vendor to re-run the data search with a more modified set of terms and date ranges, you’ll most definitely rack up costs. Clearly, here is a situation to be avoided.
I was amused at the frankness from Speros. One way to keep costs down, he said, is to try and squeeze third-party vendors. In this new economy, this technique could now become the norm. These days, vendors are struggling to keep a constant work flow. Therefore, they are willing to negotiate price more than ever when you go back for a second bite at the apple.
The value of the content must be weighed against costs. Is the data current or archived? When data is archived, the data is sprawled and spread out over various formats. Piecing it all together could cost quite a bit of time and technology. Even if the data is on a hard drive, it could have sections deleted and need more forensic handling. Forensic data can look like “confetti” which in turn becomes more costly to produce.
How do you produce ESI data without the proprietary database or application? Exporting from certain types of applications make it virtually impossible to use without the application itself. In this scenario, the data is incomprehensible.
In certain cases, courts have placed the burden of purchasing the application on the requesting party. If they want the data that badly, they should be ready to pay for it.
Does the data you are seeking go so far back that it was once owned by a different corporation? Many corporations and companies are bought and sold over time. One would think past records are kept but actually, that is not always the case. If the data goes far beyond the time the present corporation has been running operations, you may be out of luck. There is no real obligation to keep records from the last business that operated the company. However, if the data is accessible, you have to produce it unless it is just too expensive.
Quite often, lawyers ask the court for relief from the cost of producing documents electronically. Just as often, they come to court without a specific example of costs, driving judges crazy. No lawyer enjoys being singled out for wasting judges’ time when the judge sends them back to figure out the costs.
I am a big fan of one of the topics covered by Speros. We call it weekly meetings but he calls it “trial-logue”, a great phrase for constant communication between the team members. I really cannot count how many times the lack of communication created a monster of an issue that could have easily been resolved by a phone call. Hopefully, this phrase will become widely used in the language of legal technology.
Speros concluded by reminding us that a cohesive team is one that is utilizing the talent of each member for the successful operation of a well-run and less costly ediscovery project. These are some of the finer points that lead us in the right direction and allow for the timely production of data without sacrificing quality. That is the art of Litigation Technology and well run ediscovery projects.