EDD: Issues, Law, and Solutions: Predictive Pricing and other Ediscovery Trends

Wednesday, December 29, 2010

Predictive Pricing and other Ediscovery Trends

As 2010 comes to an abrupt end with tons of work in our shop and a positive outlook for the upcoming year I thought I would take jump on the bandwagon and take a brief look at what I see as the upcoming hot topics and trends in eDiscovery for the new year.

Predictive Pricing: as data sets grow larger and larger AND LARGER the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys’ fees. I predict that the pricing models in play currently , that monetarily reward service providers based on the amount of data that is processed are going to disappear. The current model is dead. At present eDiscovery is a volume-driven activity-- more volume equals higher costs. Typically reactive approaches to legal edicts are executed without a clear eye on costs which pains everyone involved in the long run. This approach is unsustainable as volumes grow unabated. Creative vendors will find ways to implement predictive pricing models to everyone's benefit.

Sources of data will become more and more diverse : PST's, hard drives and network servers are standard locations for forensic collections. As e-mail is bypassed by informal discussion threads, facebook postings; foursquare and tweets, attorneys dealing with eDiscovery preservation issues must realize the importance of identifying evidence that may exist outide traditional e-mail boxes and server shares. Notice how little email your teen ager uses - as Mr Bob Dylan once said sagely.. " The times they are a changin'."

The "Cloud" will become increasingly relevant in the litigation support model : Gartner predicted that 2010 would be the year in which cloud computing would reach the 'peak of inflated expectations'. I think that in 2011 the cloud computing model will become mainstream, the technology will finally be ready to offer computing power on a consumption basis using a browser based apps. The cloud computing model will allow a firm or service provider to apply e-discovery best practices in a cost-effective manner.

Software suppliers will focus less on the functions of their own applications and more on the ease with which they fit into, and exchange data with, other systems. Similar to car manufacturers changing their talking points from performance to talking about their their eco-credentials instead, software suppliers and the vendors that use this software will increasingly be rated for the support which they give to their client.

Workflow: SIngle Source end to end eDiscovery with consolidated data identification, preservation, collection and processing can dramatically accelerate the document review process.. Reducing the number of discrete processes also decreases the amount of hands who may need to be involved in an eDiscovery matter. When eDiscovery involves manual effort, more people are required, which can strain budgets and result in reduntant steps.

The near future looks bright. 2011 will be a year of opportunities in the eDiscovery realm for those willing to grab them.

New technology, new ways of doing the work and new ways of funding the process all present opportunities in the coming year to those who can embrace and understand those chagnes

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Sedona Principles 2nd ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.
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Reprinted courtesy of The Sedona Conference®.
Go to http://www.thesedonaconference.org/ to download a free copy of the complete document for your personal use only.