Technology tips for cutting e-discovery costs.

• Author: Nelson, Sharon D.

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There is one sound always associated with announcing the estimated costs of electronic discovery. It is a gasp. Sometimes accompanied by a wheeze of pain, sometimes by a grunt of reluctant acceptance, and sometimes by a curse of protest. No matter how it's sliced and diced, e-discovery is not cheap.

Still ... inquiring minds have wondered whether it really needs to be quite as expensive as it is. Technology is a marvel--can't it be employed as a friend and ally in cutting discovery costs?

A Typical Scenario

An organization receives a letter from a competitor threatening a lawsuit, claiming that a recent hire has stolen proprietary information and taken it to that organization. Perhaps the organization has not actually received a letter, but it has reason to believe that there will be litigation involving it. Either way, it is now in a litigation hold and must quickly preserve any evidence pertaining to the alleged wrongdoing.

Larger organizations may have records management systems in place to deal with the rapid identification and preservation of information. But many don't have a huge budget to implement data preservations systems just for the purpose of preserving evidence for a case.

The more common scenario is for an organization to have a rudimentary system of information categorization and retention that doesn't lend itself very well to reacting to the litigation at hand. Its initial reaction is to save everything just in case it may be relevant. After all, storage space is cheap and getting cheaper. However, this initial premise will significantly raise costs for the litigation. The single, most costly component of e-discovery is the attorney review. Therefore, the goal must be to keep the data volume to a minimum.

Locating the Data

Hopefully, the organization has some sort of records management system that can aid in identifying what data should be preserved. If not, it needs to develop a data map that identifies the potential location of electronic information. It should not forget data that may be held with third parties. As an example, if it outsources its payroll and the lawsuit involves employee compensation, it needs to notify the payroll company not to destroy any information and to preserve data pertaining to compensation.

What if the organization doesn't know where the information is and it hasn't restricted where employees can place data? At a minimum, the organization's computer usage policy should identify the acceptable uses of computers and what equipment is acceptable. For example, USB flash drives are a dangerous source of data theft if not properly controlled. All too often...