Litigation Support

Demystifying eDiscovery Costs

By Gretel Best posted 09-13-2021 10:16

  
Please enjoy this blog post authored by Gretel Best, Manager, Litigation Support & eDiscovery Management Group, Gowling WLG (Canada) LLP. 

As the volume of electronic data continues to grow, managing the cost of processing, reviewing and producing data as part of the electronic discovery (“eDiscovery”) process is becoming increasingly challenging. Leveraging technology and litigation support tools and retaining the assistance of vendors or alternative legal service providers (“ALSP”) are effective ways to manage these costs.

However, implementing cost saving measures can itself present a complex undertaking for those who fail to approach tasks strategically or understand how eDiscovery fees are applied.  To help readers navigate this area more easily, below is a brief overview of some of the fees associated with the eDiscovery process along with some suggestions to mitigate these costs.

Technology:

Technology costs vary and depend on the litigation support tools and platform you use to process, review and produce your electronic data and how you have procured it.

You can procure litigation support tools and platforms in several different ways:

  • On premise – software licensed through a vendor, installed and accessed on your local computer or network. Data resides locally.
  • Software as a Service (“SAAS”) – software licensed through a vendor and accessed via the cloud through a web browser. Data resides in the cloud.
  • ALSP engagement – software accessed through an ALSP on a case-by-case basis using their vendor licensed on premise or SAAS solution.

Technology costs can include some or all of the following fees:

  • Processing fee calculated per gigabyte
  • Hosting fee calculated per gigabyte, billed per month or partial month
  • Analytics fee calculated per gigabyte
  • User fee calculated per user, billed per month or partial month
  • Data archiving and/or cold storage fee calculated per gigabyte, billed per month

You should be aware that some of these costs will not only apply to your data, but also to opposing party data if you intend to host opposing party productions in your litigation support platform.

There are also litigation support platforms on the market that bundle all of the above-noted costs into one per gigabyte fee or flat fee.

Professional Services:

Vendors and ALSPs provide valuable support to your legal team via professional services.  Professional services can be broken down into several different categories:

  • Technological - tasks relating to training, set up and utilization of technology, litigation support tools and platforms.
  • Case Management - tasks relating to the management and oversight of a specific case or matter.
  • Project Management - tasks relating to the development, implementation and execution of project specific processes and workflows within a case or matter.

Professional services are billed on a per hour basis or, if negotiated in advance of the engagement, as a flat fee. They may include some or all of the following:

  • database creation, support and set up
  • user creation, support and set up
  • technology support and training
  • data analytics and analysis
  • document review planning, support and management
  • data collection, extraction and analysis

Review Services:

In addition to professional services, some vendors and ALSPs provide document review services starting from the first pass review through to the application of redactions, quality control and production. Rates for review services generally vary depending on the type and level of review and the experience and location of the review team. Review services are billed on a per hour or per document basis or as a flat fee.

Mitigation:

Effectively managing the volume of data that you collect, process, review and host can significantly reduce the cost of technology, professional services and review services. Fortunately, there are several different ways to manage and reduce data volumes, including those outlined below:

  • Negotiate a discovery plan that clearly sets out the scope of documents required for collection, review and production including date range, custodians and categories of documents.
  • DeNist (identify and exclude non-user generated documents such as system files) and, if possible, de-duplicate your data.

  • Leverage technology to reduce the number of documents that require review and streamline your document review approach (i.e. email threading, near duplicate analysis, language identification, clustering, categorization, communications analysis, predictive coding/continuous active learning).

  • Natives and images of documents make up the bulk of hosted data volume. To reduce hosting volume and cost, in the post-production stage consider exporting and archiving natives and/or images of unproduced documents that and are no longer required for analysis or review. If you wish to maintain existing analytics results and search indexes, the extracted text and metadata attached to these archived documents can remain in the litigation support platform.

  • Monitor user activity and, in a timely manner, ensure that you deactivate users who no longer require access to your litigation support platform or who will not require access for an extended period.

  • If your matter is dormant, take advantage of cold storage. It may take several business days to restore data from cold storage.  It is important to understand cold storage costs and restoration timing before you move data to cold storage.

  • If your matter is resolved, archive your data as soon as possible to avoid unnecessary hosting and user costs. It may take several business days to archive data.  If an archive request is submitted mid-month, archiving may not be complete before the end of month.  As such, hosting costs for the following month may apply.

Whether you are part of an in-house corporate legal team, small law firm or large law firm, eDiscovery costs can be mystifying.  However, managing such costs effectively – whether through technology and litigation support tools or engaging a trusted vendor or ALSP – can present its own challenges if not navigated carefully.

If you have any other data reduction or data management strategies, please feel free to let us know. We always welcome your feedback and the opportunity to share information with our ILTA community.


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