Attorneys seek cost-effective approaches to electronic discovery

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With the recession taking its toll on the bottom lines of many businesses, attorneys who engage in electronic discovery are looking to cut costs for clients.

The first place to start, according to several lawyers, is scaling back the amount of information that is searched and reviewed.

Milwaukee attorney William J. Mulligan said when e-discovery started, parties would tend to request anything and everything to analyze for relevant case information in what he calls the “scorched earth era.”

“I think they are becoming more open about what they are looking for, and the economy, together with an awareness of litigation costs, is forcing people to do what is necessary, but not run up excessive costs,” said Mulligan, who is a commercial litigator at Davis & Kuelthau S.C.

Trimming Fat

One way lawyers are narrowing the scope of searches is by trimming some of the electronic fat.

Attorney Dan Nelson of Armstrong Teasdale LLP in St. Louis, said parties are more inclined to work with one another at the initial meet and confer to determine which electronic sources are going to provide the most useful information.

Nelson and certified computer forensic examiner, attorney Craig D. Ball presented on ways attorneys can be more efficient in e-discovery at this year’s ABA Techshow.

“If you stake out a position with the other side that is reasonable, you are going to save a lot of time and money in the long run,” said Nelson, who chairs the Electronic Discovery Group at Armstrong Teasdale.

That was not necessarily the case in years past, as larger companies were more willing to invest upwards of $500,000 in e-discovery searches.

Is there a good chance a client is going to have critical information stored in an MP3 format?

Probably not, said Ball, so no need to invest in a search of someone’s IPod.

Now, clients are more cost conscious about how much they can spend and attorneys have a responsibility to abide by those economic limitations, he said.

“People are looking to save their jobs and careers,” said Ball, a Texas trial lawyer specializing in technology consulting. “Clients have reduced budgets, so to the extent you can offer them services they can afford, they are going to hire you.”

Mulligan said in his recent experience, opposing counsel is often willing to negotiate the scope of research and recognize that neither side wants to encourage their clients to spend more on e-discovery than what the entire case is worth.

“We’re talking about saving thousands of dollars,” said Mulligan, who added that depending on the type of case, data capturing costs can range from $5,000 to $15,000 with another $10,000 to $25,000 in review costs.

Keyword searches, filtering tools and de-duplication — a method of identifying e-mails that are repetitive or irrelevant to a case search — are all ways to help limit expenses at the outset.

Ball said in his experience as a forensic examiner, de-duplications and various forms of filtering can reduce the amount of non-essential data for review by one-third or more.

He added that clients, especially now, do not want to waste money having experts look at e-mails which say, “so and so brought donuts, they are in the break room.”

Time to Spare

While tech-savvy attorneys are becoming less adversarial during the e-discovery process, Ball said there is a fine line between asking for too little information and too much.

“Over-discovery has always been a risk in litigation and clients have been occasionally victimized by lawyers who will over-discover a case,” Ball said. “But I think those mistakes are made out of sheer ignorance and not guile.”

On the other hand, Mulligan suggested that attorneys are not giving up on what they consider crucial evidence either, just how they go about finding it.

He said one of the growing trends is contracting with attorneys to reduce the volume of documents for review.

“In some respects you might be paying consultants more per day or per hour, but you are getting a product that saves a lot more on review time,” Mulligan said.

Nelson said an increasingly popular option for firms is “outsourcing” reviews to attorneys in India for as little as $30 per hour. But attorneys have to make sure the vendor is trustworthy and won’t disclose confidential information, either intentionally or accidentally.

But ultimately, Nelson said the best way for attorneys to save their clients money in e-discovery it is to know the process themselves.

“I would suspect that there is a fair segment of [your] readers who did not have 100 percent wall-to-wall billable hours in March,” Nelson said. He noted that now is the perfect point to use some of that free time to get up to speed on electronic discovery, ensuring that the lawyer will not be left behind.