I had an interesting experience the other week with a law firm client and their corporate client regarding the need to process a vast amount of data and the associated costs with the project. It was apparent that there was a lack of understanding of scope and appreciation for the associated costs related to achieving their goals. In my opinion, the scope of work was further reaching than what was needed. I am not a lawyer, but common sense should rule the day over restoring data from an entire network that could amount between 400 and 800 backup tapes and result in a data set that could range from 150 to 200 TB of data, yes I said TB not GB. To put things into perspective, an industry standard storage device used in the eDiscovery business would cost approximately $100,000 for 38 TB of data storage. And as a rule of thumb, I always say the amount of source data you take possession of will increase threefold from start to finish as the source data is copied into our environment, processed, hosted, and eventually productions generated. So for storage infrastructure alone for this project, our investment would reach $1,600,000 and that does not include the actual working hours and royalty fees required to utilize and enterprise tools to complete the project.

The competing need was the law firm who wanted the most comprehensive set of data and the corporate client who wanted reasonable costs associated with the process. The process being the need for effective management of electronically stored information so that appropriate legal representation and advice could be offered.

What should both clients learn from this process?

1. Know your scope of the project at the outset: costs and other factors may influence and change the scope, but you need to be flexible because proportionality (common sense) should rule the day.
2. Have your homework done in advance of engaging an eDiscovery expert: legal should define the need, the client IT staff provide the required information, and the external expert will provide the guidance, options, and related costs.
3. It should not just be about money: although the bottom line and cash flow is king to a business, the cost should be considered in the context of the need and balanced with the approach.

What was I reminded by this experience?

1. Just as cash flow is ‘king’ to a business, scope of work is ‘king’ to mine.
2. Educating clients to appreciate the magnitude of what is being asked is not always an easy accomplishment.
3. It is a fine line to walk to strongly advocate opinions and best practices that are not being heard.
4. Planning is just as important as execution

It is difficult to shut our individual "professional world" out from technology as it continues to play an ever increasing role in helping us manage our day to day activities and accomplish tasks that need to be done. This will range from the obvious of your cellular phone to Blackberry to the Delonghi for your morning expresso. If your coffee is too strong one morning, you can adjust for tomorrow, but we are not afforded that luxury when processing ESI. The reality is, technology continues to evolve, manufacturers / developers are listening to market needs and in many cases developing products or tools that maintain their relevance because they meet your needs or at least somebody is telling you it will. Although I don't have a Delonghi 'consultant' knocking at my door, you will in the world of eDiscovery. As new tools and methodologies address the ever changing technology landscape of the business world we live in, we are constantly being bombarded with upgrades, new technologies, added expenses, and decisions to make regarding all of these.

The obvious challenge with eDiscovery and the tools and approaches we use to address the needs for identifying, preserving, collecting, processing, reviewing, and producing ESI is that every case might be different or at least some distinct nuances. The differences may be the hardware, software, data formats, amongst many other variables. Although there may be a lot of 'Microsoft bashing' that goes on from Mac 'fans' or others who are the defenders from perceived monopolies there are benefits to be had from the 'mainstream'. Having some commonalities in the technology world of email communications and business applications allows for the development and improvements of eDiscovery tools that can build upon previous releases, research and development. However, eDiscovery does not allow us to only focus on the mainstream we need to address all curve balls that technology may offer – what I refer to as the 'fringe'. And this is where some of the real challenges of eDiscovery come in to play – there is no eDiscovery in a box solution.

With litigation support tools, we might invest in one technology to assist with managing our evidence whether it is documents, transcripts, or work product developed based upon the evidence. And invariably, we will complain about the lack of features or how the program is not as intuitive, or wishing it could do x, y and z. If you and your staff have been properly trained, you will leverage some of the benefits of efficiencies and effectiveness of evidence management tools through different stages of the litigation process. But if the ESI was handled properly from the beginning, you issues are not with the integrity of the evidence but how to review, analyze and understand the evidence.

eDiscovery tools are a bit different and some confusion starts to arise as these tools are also now being used during the review stages and in some cases even production. It is important to remember eDiscovery tools must be able to effectively manage ESI (ie track sources, deduplication, reporting), extract metadata, and export information in a variety of useable formats. The fundamental importance when working with eDiscovery tools is that the integrity of the data has to be maintained and a clear audit trail exists throughout the process. If you are using only ONE eDiscovery tool, then perhaps you are the 'tool'.

On my flight back to Toronto, I decided to make use of this time to make my contribution to the ‘bits and bytes’ that have gone before me from a 35,000 foot view (how appropriate considering where I am). I wanted to start by stating the obvious, I am a business owner. I continue to manage a litigation support company as I have for the past 8 years. I offer that so readers know the perspective I could take concerning best practices related to electronic evidence management and litigation support. However, the important point is that I am viewing this from is the perspective of a corporate business, where we do have a need for lawyers and at times litigators.

I decided to make a self-assessment of my own technology use and how it would be impacted by “eDiscovery.” As part of my inventory check, I placed all of my electronic business tools that I carry on a regular basis on the pull-out tray. I realized very quickly I needed a larger tray to hold my BlackBerry, cellular phone, laptop, USB key, and an external hard drive.

Although I needed a larger tray, the real questions that came to mind were: is all of this stuff relevant, who is going to look at it and what is it going to cost? And why is that my immediate reaction? As a business, we are for profit, which means at the end of the day, or more appropriately quarterly and annually, we look at our expenses and revenue to see if we made money or not. Anytime we are faced with litigation and discovery obligations we want to limit the ‘amount of stuff that may need to be done.’ In this instance, I would want the lawyer to explain why my electronic gadgets are relevant and what is going to be done to my belongings that I use on a daily basis. The nervous twitch begins as I contemplate BlackBerry withdrawal…for how long I ask? Or perhaps the notion that someone will soon discover that I like to listen to Sugarland or that I have a doctor’s appointment to address high cholesterol will soon become apparent. I realized very quickly that the cold sweat that was breaking out had nothing to do with the airline food (although I did question that) but rather with the fact that I will be inconvenienced and feel my privacy is being violated in some way.

So what can we learn from this self reflection and assessment on eDiscovery? Custodian interviews play an important part in the eDiscovery process. Three important themes arise from my story as a corporate client: privacy, inconvenience, and cost.

In terms of privacy, the reality is that many of us will receive or may access personal emails or electronic material in our business environment. Regardless of acceptable use policies, we may use our email at work to record personal appointments in our calendar, receive a photo from our child as they are playing at a park with friends, or try to move a song from our music account to our iPod. So when I hear you are making an exact copy of my hard drive or perhaps making a copy of my entire mailbox I begin to ponder, did my Uncle Ross quit sending those silly and inappropriate emails? (yes I did ask him to stop). So regardless of the confidentiality that may extend in litigation, I am actually more concerned with privacy. Are there ways to distill relevant evidence quickly and efficiently without baring my soul to the lawyers working for me?

By conducting custodian interviews, not only are you effectively trying to determine what ‘gadgets’ of mine may be relevant, you are also letting me know what the process is about. You instill a small level of comfort that you want to understand how I work to determine where you need to look. Perhaps not all of my gadgets are relevant or require data to be collected from them because you understand when, where, or why I use them. And as such, I may not have to be without my cellular phone or have no BlackBerry or laptop access for two days as it is being ‘acquired.’ You appreciate the importance of minimizing disruption to my business as you go about yours.

Narrowing the scope should help to reduce the cost of processing my data. As well, I have come to realize, what you process will require legal review. And regardless of the billable rates of the lawyers working for me, I know it will be more than my round trip plane ticket to Phoenix. I am not surprised, but I am hopeful that it won't exceed a the cost of a business ticket for a flight around the world. So I as the flight attendant begins her routine safety instructions of the emergency exits and requests for seats in the upright position, I think back to my conversation with my legal team. They too have described their routine of document review, in particular the instructions for fastening the metadata in a locked position to enable them to utilize technology to my benefit. They have cautioned me that the need for an emergency exit to mediation is not required on this leg of the trip as their approach to review is strategic and leverages state of the art technology. I find comfort not only that my legal team is piloted by a seasoned veteran, but also that her team has the knowledge and experience to ensure we make the right decisions throughout the journey.

By being more precise in your efforts, I hope to see focused preservation, collection, processing, and review of information stored on my ‘gadgets”. This will ensure inconvenience and disruption to my business is minimized, a semblance of privacy may still remain, and the cost of this process wont prevent me from purchasing my next generation ‘gadget’ that will surely be released next month!