FOCUS to Reduce eDiscovery Costs
(c) Can Stock Photo

(c) Can Stock Photo

If you want to get what you want in the discovery of ESI and control your costs,
you need to FOCUS your discovery requests.

Focus on what, you ask?

On what you actually need for the litigation.

Get out of the past — where we requested broad sweeping discovery — and ask
yourself these four questions:

1. What do I really need to investigate/see/find out to make my client’s case?  

2. What are the elements of the claims that I have to prove/defend against, and what ESI is needed for those elements?

3. What is the strategy for this case?  Are you looking to try the case for publicity, settle it early, avoid publicity for your client, or downplay your client’s criminal past, etc.?  All of those things factor in.

4. How much money is available for me to spend on discovery?  If your case is on a contingency fee, you better understand what your cost outlay will be upfront.  Or whether your client will pay for it.  eDiscovery services are hard costs that have to be paid when you use them.

A personal injury case that depends on the injury sustained and the design of the product (seatback, slip n’ slide, shoe, etc.) doesn’t usually require mountains of discovery.  What do you really need?  Who do you need to have said it?  When would he/she have said it?  When was the product designed and was it changed?  Are there previous incidents? Start there, and then branch out.

We forget that discovery is an iterative process, one that we can revisit for more information.  So start with what you really need — because it isn’t 5 years worth of email from 20 people. You’ll end up with 600 GB of data that costs thousands of dollars a month just to access.

Instead, try asking for a 6 month time frame for one person and see who they are talking to and what matters.  Maybe you’ll find key phrases that are what matters, and you can limit your searches to that information.  Think about taking fact depositions to find out what information the business creates, how and where they store it.  Agree with the other side that the depos are limited to just those topics, and that they don’t preclude you from talking to those same witnesses again once you have ESI.  I get very little use out of 30(b)(6) depos of IT folks unless I need some complicated system information — they don’t know how the business creates data, only how the IT infrastructure is set up to manage it. That’s not helpful information when you are trying to determine the scope of what you want.

Be smart — thing about how ESI is created, stored, searched and managed — and use that knowledge to FOCUS your discovery requests. Lawyers routinely kick out over broad discovery requests to see what we get — asking for all communications between 5 parties over a 4 year period of time. Well, that costs alot of money.  Would you spend it if it was your money?

Compare the cost of handling volumes of data to the value of the case(s) and make sure that the cost of managing what you are asking for fits in big picture.  I too often see lawyers who bite off much more information than they can afford to manage because they didn’t understand what they were getting themselves into upfront.

Be smart and cost effective.  FOCUS your discovery, use the process iteratively, and know what it will cost.

This is a win-win for you AND your clients.  What’s better than that?


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