Pre-trial discovery was originally intended as a rule in our civil courts that would prevent trial by ambush, but the ability of massive discovery requests to bog down a case and load up the costs of litigation turned it into a key strategic focus of corporate litigants. As we all know, the explosion of electronic documents simply exacerbated that problem and now we’ve spent the past decade trying to figure out how to tame the costly beast of eDiscovery.
The process of reviewing electronic documents accounts for approximately 73 percent of the costs of eDiscovery, according to the RAND Institute for Civil Justice, so it’s obvious that any meaningful efforts to contain runaway eDiscovery costs must confront the document review phase. Still, many experts contend that the earliest stages of the workflow (the “left end” of the eDiscovery process) are where we can make crucial progress.
“We know that review chews up time and money, but there is a myth that review is the most important part of discovery,” said Niloy Ray, eDiscovery counsel for Littler Mendelson. “In truth, the key to cost control in eDiscovery is setting proportionate discovery expectations and then focusing on how to reduce the amount of irrelevant data going into the eDiscovery funnel.”
During a recent webinar hosted by EDRM and sponsored by LexisNexis, “Shift Left: A New Age of eDiscovery,” the panelists identified five key ways to achieve meaningful cost control in eDiscovery by focusing attention earlier in the workflow:
- Frame discovery narrowly – try to exert control over the pre-litigation discovery by limiting the scope of data collection, intake, analysis, review and production.
- Lock in favorable agreements – be smart in discussions with opposing counsel and seek out eDiscovery agreements that put you in a better position to control the direction of the scope (e.g., specific search terms that will be used, how email threading will be treated, etc.).
- Wear the “white hat” – in court, seek to be the advocate in the dispute who makes the eDiscovery process simple, efficient and strictly relevant to the key facts involved in the case.
- Act early – be prepared to move swiftly in the earliest days of discovery and produce responsive documents that fit within the narrow framework you sought to establish, thereby getting ahead of the game and laying down a marker for what the scope of eDiscovery should be for the remainder of the litigation.
- Risks of ignorance – the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) impose greater pressure on litigants to understand the role of eDiscovery technology, so leverage this risk on opposing counsel with the court if necessary.
“More than 90 percent of all cases settle prior to trial and early case assessment can allow and organization to better estimate risk when deciding on litigation strategy,” said Krista Fuller, director of product management for LexisNexis Litigation Solutions. “By shifting our focus to the left and employing analytics from the earliest stages of the workflow, we can not only reduce costs and eliminate waste in eDiscovery, we can also help litigators make more informed judgments about their case strategy.”
George Socha, co-founder of EDRM and the owner of Socha Consulting LLC, moderated the webinar. In addition to Ray and Fuller, expert speakers included Xavier Diokno, senior data analytics manager at Consilio, and Nazir Shwayhat, solutions architect at Brainspace.
To listen to an audio recording of the program, please click here.
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