Originally published May 2011
Keywords: e-discovery, costs, electronic data, post-production costs
An organization is involved in a litigation involving significant volumes of electronic data. After enduring the costs of processing the data, the organization finds itself faced with the additional costs of managing and maintaining not only its own production data, but also the data produced by other litigants. As the production volume mounts, the organization becomes increasingly concerned with the growing costs of managing the post-production data over the life of the matter. The organization begins to explore potential options for managing the costs of post-production data as it continues to evaluate the productions and prepare for trial.
Best Practices for Managing the Costs of Post-Production E-Discovery
There is a great deal of focus on managing e-discovery costs pre-production, but far less discussion about how to manage these costs post-production. Yet post-production costs can be significant and can extend over long periods of time. Litigants and their counsel should think creatively about how to manage those costs, including leveraging the same types of technologies that are used pre-production, limiting or eliminating certain costs as soon as possible and leveraging work product across litigations.
Consider Corporate Cost Savings Initiatives
- Preservation Planning. In addition to establishing a process for implementing legal holds, organizations should establish a defensible process for lifting them. Establishing such a process allows an organization to minimize the costs of ongoing preservation and to return to its "business-as-usual" records-retention policies as soon as possible. Ensuring that legal holds are actually lifted is just as important as establishing the defensible process in the first place; policies and procedures are effective only when they are put into use by the organization.
- Data Collections Tracking Database: Organizations facing frequent, or repeat, litigation should consider developing a database to comprehensively track the history of each data set collected for a legal matter, including details about date ranges, custodians, data sources and restrictors (as in the case of keyword-driven collection). By maintaining this database, an organization will be able to track how the datasets were processed, if the documents are available in native and/or TIFF formats and, most importantly, where the data resides (e.g., in-house, outside counsel or e-discovery provider). This resource will help determine whether the data can be archived offline at lower cost, deleted, or repurposed for a new matter (thus avoiding repeat collection cost).
Negotiate with Your Third-Party Provider
- Ensure Vendor Contracts Include Post-Production Cost Saving Measures. Negotiate upfront with your provider for lower hosting charges based on the phase of the litigation. For example, press for a reduction in storage charges when review and production has been completed and fewer users are accessing the database, and negotiate a reasonable export charge with an eye toward moving the production data to a lower-cost hosting provider or bringing the data in-house if you have an appropriate database environment. Maintain unnumbered TIFF images for repurposing, and contract with your provider to reuse (by re-endorsing) these images when applicable to other matters. Establish reasonable fees for your provider to dispose of (or return) your data and close out any hosting engagement.
- Practice Thrifty Data Management. Even the most basic data management efforts can save an organization thousands of dollars. For example, make sure to direct your provider to archive raw collection data to inexpensive backup media once that data has been superseded by its production form, and end hosting engagements as soon as possible to alleviate ongoing costs. Look for opportunities to reuse hard-drives or other storage media when it is no longer necessary to maintain the existing data on that media.
Utilize Proactive Discovery Strategies
- Negotiate Production Formats. Organizations should keep post-production efficiencies in mind during pre-production negotiations. For example, the most common production formats remains TIFF images accompanied by metadata and text load files. While these formats allow for full-text searching, and even some advanced near-duplicate document detection that can enhance post-production analysis, they can preclude the use of most early case assessment (ECA) tools, which generally rely on native files to deliver full benefit (e.g., ECA features that enable visual analysis of relationships between witnesses greatly enhance deposition preparation while providing more efficiencies over the traditional method of reviewing documents that hit on witness names). TIFF images also increase post-production costs because of the large size of the files. In some instances, it may be useful to consider opportunities to request native format production for file types (such as email) that benefit from ECA tools or file types that consume less space natively than in TIFF form.
- Utilize Advanced Technologies. A review of every page of every document produced by an opposing party is a near impossibility in large, document-intensive litigation. ECA, near-duplicate technologies, concept searching and other tools designed to organize and categorize documents can be used not only for pre-production review, but also for post-production analysis. These tools enable an organization to identify hot documents, prepare witness kits and trial exhibits, or identify deficiencies in an opponent's production in a timely and cost-effective manner.
- Sharing E-Discovery Provider Services. Consider sharing a single e-discovery provider to host the post-production data from all parties, including opposing parties. By controlling end-user access rights, confidentiality for all parties is maintained, while significantly reducing costs.
- Leveraging Work Product. Reusing data from other litigations can minimize future e-discovery costs. Where appropriate, organizations can work with their providers to extract the relevant data for use in any new matters. Consider also taking advantage of existing search term lists and privilege logs to reduce cost and time.
Post-production costs can add up over time, but by being proactive it is possible for organizations to manage these costs. Making the effort to inject post-production considerations into your earliest discussions (and planning) – both internally and with your adversaries and providers – can result in quantifiable cost savings.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.