But the tremendous increase in volume imposed by electronic data makes a paper-based review too expensive. First, there is a cost to print out and prepare electronic documents for review. (Many vendors charge anywhere from $0.06 to $0.12 per page, depending on the type of data that has to be printed.) And that’s for just one copy. Paper-based reviews usually require at least one pristine copy, multiple working copy sets, and finally production sets that are properly Bates-numbered. (One large firm study indicated that attorneys made an average of 12 copies of each document during the course of litigation.) Second, the only way to review paper is by a page-by-page review. Since the average digital discovery collection can average millions of pages, there may not be enough resources (or budget) to adopt a paper-based approach.

Litigation review databases are the most common, cost-effective approach to handling digital discovery. There are hundreds of service providers (and even off-the-shelf programs) that can take electronic files and emails (at a cost ranging from $0.18 to $0.30 per page) and perform two basic functions: (1) Extract all the metadata and full-text into a searchable database; and (2) Generate a corresponding electronic printout (usually in TIFF or Adobe PDF) of the electronic data that can be linked to the extracted searchable text. Once processed, the searchable text and images can be loaded into a database (such as Summation (www.summation.com) and Concordance (www.dataflight.com)), as well as made available through the Internet by a number of application service providers (“ASPs”). (Some common ASPs include Applied Discovery (www.applieddiscovery.com), Prevail (www.fiosinc.com), iConect (www.iconect.com), Discovery Navigator (www.merrillcorp.com), and Virtual Partner (www.daticon.com). All of the above litigation support programs help attorneys reduce the cost of photocopying, yet give them the option to print paper sets at any time. In addition, everything that can be done during a paper review (e.g., capture attorney calls, redact documents, organize into groups) can likewise be done electronically.

As shown by the attached cost-comparison chart, the cost to take electronic files and emails and place them in a searchable database format can be less than one-third the cost of transforming paper into a similar searchable database. Attorneys further minimize the number of paper copy sets generated, which can also be a considerable cost savings. And over time, the searchability of a database helps overcome faster paper-review speeds and makes the documents more usable. All of these advantages help attorneys keep electronic data within budgets and time frames.

Sin #6: Time is of the Essence
 

The speed at which electronic data can be processed and converted is significantly faster than paper. Many vendors can easily process more than a million pages per week, because electronic data processing is a highly automated procedure. So for attorneys whose favorite four-letter word is “ASAP”, electronic data conversion is deadline-friendly.

But sometimes, speed can kill. Conversion fees associated with the large volume of electronic documents will also be generated just as quickly. Attorneys often find that they have eradicated their entire discovery budget in that same week, especially if proper electronic data volume estimates have not been prepared. And the charges are usually irreversible and without warning.

So before giving the go-ahead, prudent attorneys will institute cost-control measures into the process. One such limitation may be sending only a representative sample in order to get metrics on what the cost will be to process the entire universe of electronic data. This will also give the team an opportunity to see how the data converts, as well as strategize on the best method for reviewing. Another measure is to provide cost ceilings on the service provider who performs the electronic conversion work, which will halt a project if it exceeds your expected budget. Other attorneys are also spending more time culling the data before sending. This helps cut down on unnecessary processing from non-responsive items like spam, soccer practice emails, and non user-generated content.

All of these methods will help cut down unpleasant surprises for both you and your client. Or at least give the team advance warning before it’s too late.

Sin #7: Eye for an Eye
 

The tremendous volume of electronic data not only presents logistical problems, but also creates strategic questions that can significantly impact how the matter is litigated. The volume can quickly bury opposing counsel in a sea of bits and bytes, as well as guarantee a retaliatory flood of electronic data in return. Cases are then decided more on how deep each party’s pockets are, instead of the merits of the particular case.

Courts are likewise struggling with understanding electronic data. While acknowledging that this information is clearly discoverable, they have provided no definitive guidance on handling digital discovery. Accordingly, parties are taking matters into their own hands and working together to establish what electronic data is processed and how it is produced.

Methods that are becoming more accepted are limiting the data only to documents that contain a set of mutually agreeable keywords. Parties have also agreed to share in the cost when the burden of electronic data production is disproportionate. Even the way electronic data is produced can help alleviate this problem. In Hart-Scott-Rodino second requests (seen in antitrust review) for example, the Federal Trade Commission has requested all electronic data be produced electronically (or paperless).

Innovative measures such as those described above are needed to avoid having substantive issues take a backseat to the digital haystack. The key ingredient for handling electronic data is cooperation and understanding. Only by understanding past electronic data sins can lawyers effectively navigate the vast ocean of electronic data in their cases.

Figure 1: Hierarchy of Data

Figure 2: Electronic data conversion cost comparison (average market per page price utilized).

Daryl Teshima is Vice President of Strategic Discovery, Inc.  His e-mail is: dteshima@strategicdiscovey.com