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Data processing comes with a price in e-discovery

By: dmc-admin//March 24, 2008//

Data processing comes with a price in e-discovery

By: dmc-admin//March 24, 2008//

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ImageHow much does it cost to retrieve electronically stored information from a computer thought to contain relevant details to a case?

That is a question rarely asked, according to a Chicago technology attorney, but one which should be posed by attorneys early on in electronic discovery in an effort to save time and money. The answer can be startling.

In his experience, Todd H. Flaming said the average cost of processing one gigabyte, or approximately 75,000 pages of information, is about $1,000.

In many cases, more than one person and one computer is investigated for pertinent information and the price of compiling PDF, Excel, e-mail and other documents into one readable database can be substantial.

“Say you have 10 witnesses and they have only 20 gigabytes each on their computer and they process everything,” said Flaming of Schopf & Weiss, LLP, in Chicago. “You’ve paid $200,000 just for the first pass, and you haven’t even searched or reviewed or looked at one document.”

So how can attorneys keep processing costs at a minimum and still obtain the necessary electronic evidence?

Flaming and other legal experts discussed ways for attorneys to avoid bankrupting their clients early in the e-discovery process at the American Bar Association Tech Show on March 13.

Think Small

One of the popular mantras in e-discovery is “don’t ask for everything” and that is especially true when determining where to seek out relevant case information, according to attorney Browning E. Marean.

He said attorneys often go about accumulating electronic information in the wrong way.

“We often do a big bang where we get all 20 custodians and then we start searching at that point,” said Marean of DLA Piper U.S., LLP, in San Diego. “As opposed to focusing
on one or two key custodians and really studying his or her data.”

Narrowing the scope can save both time and money, said Flaming, who suggested attorneys need to target candidates most likely to have relevant information on their computers.

“Find the ones who are going to be in the places where all the emails are going,” said Flaming. “If have to process everyone’s [hard] drive, you are going to be bankrupt before you even get to discovery.”

At the same time, attorneys run the risk of not finding the document which would turn the case for their client if they limit their search.

Solo practitioner Robert B. Corris said it is especially tough for a smaller firm to be selective when dealing with a larger company in a case.

“If you have to mirror their network and all their back-up tapes, your costs are going to go through the roof,” said Corris who practices in Hartland, Wis. and authored the e-discovery section of the State Bar of Wisconsin’s Handbook. “Can you say, I’ll take a chance and I’m not going to search all of these back-up tapes, but I want this guy’s computer?”

Do it Yourself?

Personally sifting through thousands of documents is an alternative to hiring an expert, but not a recommended one, said Flaming.

“I’ve tried to use the software myself thinking I’ll cut these guys out of the picture,” said Flaming. “I spent two days doing it and it was the most labor-intensive, horrible thing I’ve ever done.”

Since most of the processing software is proprietary and requires a skilled technician, Tom O’Connor, director of the Gulf Coast Legal Technology Center in New Orleans, suggested working with experts who are not “just trying to sell a solution” and can clearly explain the process in plain English.

Corris, who has done several cases which used e-discovery, said he often employs a local expert to process data and that can save search time.

“I’ll go over to his office and sit down and say, let’s search this term, what have you got?” said Corris.

Ultimately, the only way to avoid paying for processing of electronic data is to avoid it all together.

“This would be getting an agreement or going to the judge and saying we can’t afford it,” said Flaming. “If you copy everything on a disk then you just sit on your computer and click through each file.”

Few judges or court systems allot the time for meticulous searches by attorneys, said Marean, who cited the “rocket docket” method of case processing used by some federal district courts.

“The ability to do phase discovery goes out the window,” said Marean. “We in the legal profession have a huge challenge in getting people to have their day in court and do it in a cost-effective manner.”

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