In the classic movie Titanic, the crewman on watch spotted the iceberg looming ahead and yelled, “Iceberg, right ahead!” to the rest of the crew. Despite this advance warning, they were unable to turn the ship in time to avoid disaster. Hence, the end we know all too well – the ship scraped the iceberg, leading to the Titanic’s demise. The ensuing investigation revealed numerous development and piloting mistakes, including inadequate lifeboat capacity and excessive speed in perilous conditions. So, even though the crew saw the iceberg coming, it was too late to change course to avoid catastrophe.
The Approaching eDiscovery Iceberg
Careful planning and execution are the key to most things, and eDiscovery is no different. The eDiscovery industry currently flourishes on the guarantee of exponential data growth and the “collect everything and filter later” mentality, but this thinking has become outdated. The rise in court decisions chastising legal teams for poor planning and execution of a well-thought-out eDiscovery strategy is a clear warning that this continued course is riddled with dangerous icebergs. As costs and adverse court rulings continue to rise, companies willing to embrace a new strategy will be best positioned to avoid potential perils, and unlike the Titanic, can navigate safely through dangerous waters.
Let’s explore the key factors forcing eDiscovery teams to change course:
- Big Data Growth: The amount of data created in the world has grown from 0.1 zettabytes in 2005 and is expected to rise to 163 zettabytes by 2025. That’s 163 billion terabytes (TBs), for a growth of 1,630% in 20 years! According to estimates, the volume of business data worldwide across all companies doubles every 1.2 years. Much of that data – in an ever-increasing number of disparate data sources – is discoverable.
- “Collect Everything” Mentality: The historic approach to discovery has been to collect the entire custodian corpus of data (including their email box, file shares and other data sources), then load it into an eDiscovery solution where the data is filtered and culled downstream. However, increased data volumes and tightening budgets require rethinking this strategy, as the review phase constitutes 68% of eDiscovery costs.1
- Billing Models for eDiscovery Solutions: Many cloud-based eDiscovery solutions have historically built their billing models on the amount of data collected, processed and hosted within their solutions, with the client billed a one-time charge for collection and processing, and a monthly charge for hosting – both based on volume of data. Those billing models are typically on a per gigabyte (GB) basis, so the more GBs that are collected, processed, and hosted, the more expensive it becomes to manage potentially discoverable data to support discovery use cases, such as litigation and investigations.
- Meteoric Rise in Proportionality Disputes: Even though the 2015 amendments to the Federal Rules of Civil Procedure included an emphasis on managing proportionality in Rule 26(b)(1), these disputes have skyrocketed in recent years. The number of proportionality disputes in cases covered by eDiscovery Assistant have risen from 313 in 2017 to 1,206 in 2021 – an increase of over 285% in just four years!
Discoverable data may be doubling every 1.2 years, but discovery budgets can’t possibly do so, leading to more court battles over what level of discovery is proportional to the needs of the case. The combination of the “collect everything” mentality, the continued growth of Big Data, and existing per GB billing models is leading organizations full speed ahead toward the budget-busting iceberg. Will the crash sink their discovery budgets? What other risks will they encounter as they try to turn the ship at the last minute?
Strategic Discovery Scoping
What can you do to avoid the iceberg? You certainly can’t change the continued growth of Big Data, nor can you change the existing per GB billing models offered by providers (though increased pressure from end clients may ultimately force change there). What you can control is how you approach discovery by rejecting the “collect everything” mentality and implementing a better navigation system that guides you to the most relevant custodians and data sources faster and with more precision to reduce your overall discovery spend. This Strategic Discovery Scoping approach applies efficiencies at the earliest phase of discovery to not only lower costs, but also to gain a clearer line of vision into the case.
Key objectives to navigate a strategic discovery scoping approach include:
- Gain control of the logistics of custodian information and data sources: The traveling spreadsheet can be cumbersome and limited in its ability to support strategic analysis. Technology designed specifically for discovery scoping will provide greater organization, support more collaboration, and help you glean earlier insight into your custodians and data sources.
- Understand how the data ties to the facts of the case: Asking custodians strategic, matter-based questions up front can help eliminate data sources from the process right at the beginning simply because they are determined to be not relevant – or, at best, marginally relevant – to the case.
- Reduce custodians under hold: Keeping data under legal hold within an organization is expensive. Centralized tracking and a managed disposition strategy is key to reducing data volumes, minimizing costs, and avoiding non-relevant data becoming subject to future litigation.
- Eliminate unnecessary / redundant / nonrelevant data sources: Many custodians have the same emails and other data, and often large portions of collections have no relevance to the case or are redundant. Instead of paying to collect, process, and host broad data collections, savvy legal teams will identify and filter non-relevant data out of the population before collection.
- Identify and target potentially relevant content: Using index-in-place technology to search and perform targeted collection where the data lives gives legal teams the ability to dramatically reduce the amount of data collected. Coupled with a sophisticated language-based analytics approach to search terms, key evidence can be quickly located and prioritized for review and production.
- Accelerate defensible attorney review process: Making data decisions further upstream reduces time and expense in collecting, processing, and ingesting data into a review platform, resulting in accelerated attorney review and shortened review timelines.
Benefits of a Strategic Discovery Scoping Approach
There are several benefits of a strategic discovery scoping approach, including these four that are of utmost importance:
- Centralized documentation: A strategic approach is a well-documented approach, which leads to defensibility if your process is challenged in court. Centralized documentation and real-time collaboration also drives efficiency gains and provides metrics that can inform strategy on future cases as well.
- Insight into custodian data: Detailed analysis of your custodians is one of the biggest areas of opportunity to make discovery more efficient, giving you the ability to exclude custodians from the discovery process (and the corresponding costs associated with collecting, processing, and hosting their data). This analysis is typically iterative, allowing you to learn more not only about individual custodians for the present case, but also providing the basis for proactive measures to reduce the scope of discovery in the future.
- Tracking throughout the process: Another benefit to a well-documented, strategic approach to discovery is tracking data throughout the process, enabling quick responses when problems arise, keeping the overall case moving forward, and meeting deadlines.
- Reduced costs: Defensible discovery and reduced costs aren’t mutually exclusive. A strategic discovery scoping approach can enable you to meet your discovery goals while also keeping the volume of data being collected, processed, and hosted manageable.
Poor planning doomed the Titanic to hit the iceberg and sink, even though the crew saw the disaster coming. Excellent planning and a strategic approach to discovery scoping can avoid the iceberg of excessive cost and risk that discovery is rapidly becoming. The iceberg is ahead! Can you avoid it in time? The answer is yes. All it takes is proactive thinking, planning, and expert navigation.
1 Robinson, R. (2020). A 2020 Look at eDiscovery Collection: Task, Spend, and Cost Data Points, https://complexdiscovery.com/a-2020-look-at-ediscovery-collection-task-spend-and-cost-data-points/