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E-Discovery | MONDAY, MARCH 16, 2015 | S9

that any additional expense outweighs the privilege, preparation of a privilege log (to the costs of the process. While cost will almost in these approaches to ascertain whether

beneit of the requested discovery.
extent one is requested), and production.” always will be a driving factor in deciding their legal dollars are better spent through
Id. If the scope of work does not take this to what extent the role of technology plays this methodology or others.
Improve Processes to Find a Smarter Path
into account and the client wants nonparty in deciding the scope of documents to be Where in-house counsel have taken a more
discovery, eficiency and predictability can reviewed, the role of technology is a potential active role in controlling the electronic discov-
While LPM has become an important part easily become unreachable.
weapon in a litigator’s arsenal, based on rules ery process and opening up their systems to
of providing legal services generally, the same A smarter path to the effective and efi- that provide for consideration of costs and/ outside counsel, law irms have made changes
tenets can be applied to the view of elec- cient management of the process starts with or the risk of cost-shifting. However, the role to better manage and price their internal
tronic discovery management as a sub-project a proper assessment of scope. Generally, the of technology to achieve these savings by
in the overall management of the process. scope of an electronic discovery work plan not reviewing data still must align with the electronic discovery services (or abandoned
them altogether), and ESI service providers
Today, the main tasks comprising electronic usually covers only the initial intake of docu- client’s ultimate goals. As a result, one must are either vertically integrating their own
discovery are some combination of collect- ments from the client, and oftentimes, this consider what technologies will be used as processes or forming strategic alliances to
ing, culling, processing, analyzing, reviewing is the only data set considered in preparing part of the LPM process.
provide cradle-to-grave worklow. Although
and producing.
the work plan and budget because it is the perhaps seen as the litigator’s panacea, the
As with any strong LPM protocol, asking only metric that is easily measured. Then, Staf (and Price) Projects Appropriately
question of which approach makes the most
the right questions and making the right as documents come in from other sources,
decisions up front tends to result in a more the cost of processing and review increases. When thinking about the stafing of a proj- sense to achieve the client’s goals will gener-
eficient process. While by no means a com- If not addressed in a timely fashion (or at ect, there are numerous factors to take into ally be answered with “it depends.”

plete catalogue, the smarter path to electronic all), the potential to realize eficiency and account, one component of which is stafing. Management, Transparency, Flexibility
discovery management can begin with a few predictability decreases dramatically. When As with overlooked issues or unforeseen con-
simple questions: What is the scope of the this happens in the midst of a litigation and tingencies that have the potential to increase Even assuming one has deined the appro-
electronic discovery? What technologies will time constraints are imposed (either by the the project’s scope (i.e., increase the ESI to priate scope of the work, chosen the best
be used? How will it be staffed? What is it client, the court or the nonparty), the chal- be addressed), these potential changes in
going to cost? And ultimately, who will bear lenges increase. Coupled with rules that scope can cause a corresponding increase technologies to streamline the process and
the risk of problems in the process?
may then shift the costs or increase costs in stafing or pricing. Questions regarding so staffed the project appropriately, continuous
already agreed to, these events can dramati- called “soft” and “hard” costs exist for every project management is necessary to achieve
cally change assumptions and should be participant in the process, and transparency goals and adapt to changing circumstances
Consider Scope of Data
as a case progresses.
addressed up front or as soon as they can if among participants allows for the greatest For example, when the document volume
When thinking about scope, one should not anticipated.
lexibility. In the standard chain of collecting, increases and production deadlines get close,
keep in mind that the rules may provide one processing, culling, reviewing, analyzing and
set of guidelines, the available technology Choose the Right Technology
producing, there are a variety of costs that legal teams are prone to bring in everyone
a second set and the ultimate client goals can be incurred by the client, the law irm with a spare minute to complete the review,
yet another set. Scope should include not Although it remains premature to pro- or the ESI service provider. The opportunity regardless of rate, familiarity or skill set. While
only questions about what documents the nounce the death of linear review, technologi- to realize eficiencies in the process can be in such circumstances, the risks of ineficien-
client has to provide—which is a more reac- cal tools to streamline the electronic discov- designed around who has the most soft costs cies are likely borne by the law irm or the
tive approach to the other side’s demands ery process continue to be developed. While to exploit or who can best assume risk in managed review team, it is still an undesir-

and requests—but what documents the client technology-assisted review was a novelty a certain aspects of the process. In-house legal able outcome from participants in a process
wants to provide to prove its case. While on few years ago, it is becoming more and more departments, depending on their size and designed to achieve optimal eficiency and
the surface, these two questions may seem prevalent, and more and more accepted.
available technology, may be able to collect predictability for all involved.
intuitively identical, many times they simply and even process more eficiently, subject to While a more complete scope deinition
are not. Litigants ultimately have divergent the tools at their disposal or their relation- may help, along with built-in checkpoints,
goals and views of a case when engaging in ships with service providers. Others—for one solution is to assign a project manager
discovery. In thinking about the project, both Scope should include not
ethical, strategic or practical purposes—may (be it a lawyer, managed review specialist,
of these concerns must be addressed when outsource these processes.
only questions about what IT professional or in-house counsel) to keep
developing an initial work plan and budget— documents the client has
Different structures exist for different pro- tabs on the project, in as close to real time as
but these are not the only concerns.2
cesses. Some in-house legal departments part- possible, and work with the client to make
Rare is the case that doesn’t involve receipt to provide—which is a more ner with traditional ESI service providers to better decisions about scope, technology and/
of documents from the other side (naturally), handle the processing and culling, then turn or staff to meet deadlines, modify pricing and
but also documents that come in from non- reactive approach to the other materials over to their law irms for additional even adjust goals.
parties. The question to ask is whether the review. At that point, the preferred service In sum, LPM continues to be a focus of
agreed-upon scope, work plan and budget side’s demands and requests— provider can provide access, hosting, analyt-
effectively covers these situations or at least but what documents the client ics and production services, or those activi- clients, and to navigate the best and smartest
has the lexibility to address the anticipated ties can be performed within the law irm. path to achieving clients’ goals is to under-
wants to provide to prove its stand the roles of the rules, technology and
data that comes in from other sources. Also Other in-house counsel may have formed stafing in designing eficient programs with
to be taken into consideration are the roles of case.
preferred relationships with traditional ESI predictable costs.
the rules and the courts (or other tribunals) service providers and legal managed review
that may affect scope down the line.
teams to shift more certain work away from •••••••••••••••••••••••••••••
Of particular note to New York state Eficiency and predictability can be achieved the higher cost providers at law irms in a
court practitioners is that effective Sept. by changing how data is processed, reviewed determination of what services should be 1. FRCP 1 provides that the FRCP “should be con-
2, 2014, the Uniform Rules for the Supreme and produced. Processing all potentially rel- provided, by which provider, and at which strued and administered to secure the just, speedy, and inexpensive determination of every action and proceed-
and County Courts (Rules of Practice for evant data should be a thing of the past for price. Who performs the services depends on ing” (emphasis added).
the Commercial Division) were speciically most cases. While keyword searching and how the total cost of the electronic discovery 2. Another aspect that falls outside the scope of this
article is the growing push for cooperation between par-
amended to address discovery of ESI from limits on custodians are an intuitive starting process is allocated, which needs to be con- ties in the conduct of electronic discovery. The scope
nonparties and cost shifting.3 One potential point, technology exists for effective prepro- sidered as part of the overall LPM process.
of project work plans may make assumptions on the
area of concern is the that the rules provide cessing culling that can greatly reduce costs. In the face of these challenges, new models degree of cooperation that is reached between adversar- ies, but this is probably one of the more dificult assump-
that the “requesting party shall defray the Near duplication technology permits the identi- are emerging in the marketplace. Just like tions to get correct unless there is a strong familiarity
nonparty’s reasonable production expenses cal treatment of “near duplicates” to reduce in-house legal departments and law irms, between the litigating parties and/or counsel.
in accordance with Rules 3111 and 3122(d) time and costs when differences between the ESI service providers are feeling pressure 3. Notably, the issue of who bears the costs of produc-
of the CPLR” (emphasis added).4 By rule, the documents are less relevant. Extracted text to provide alternative fee arrangements and tion in New York has been an open question. While many
reasonable production expenses may include review can also provide increased eficiency, value-based pricing. Newer to the ield is the courts had previously required that the requestor pay,
that trend has deinitely shifted. The most recent guid- ance, provided by the First Department, states that the
“fees charged by outside counsel and e-dis- predictability and savings over using native “per document pricing” model wherein a tra- cost of searching, retrieving and producing ESI should
covery consultants” and “cost incurred in review and production tools.
ditional ESI service provider teams with a be borne by the producing party. U.S. Bank N.A. v.
connection with the identiication, preserva- These technologies, which are becoming legal stafing review company and provides a GreenPoint Mtge. Funding, 94 A.D.3d 58 (1st Dep’t 2012).
tion, collection, processing, hosting, use of more widely used and accepted, are generally predictable cost model based on the number 4. Both CPLR 3111 and 3122(d) already provide: “The
advanced analytical software applications and designed to reduce the volume of data that is of “documents.” Of course, clients and law reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery” (em-
other technologies, review for relevance and
ultimately reviewed, thereby decreasing the
irms alike are demanding more transparency
phasis added).