I am “tool agnostic.” Are you?
The market for e-discovery services is in constant flux. Technology changes literally by the minute, mergers, acquisitions and business failures occur among e-discovery service providers at an alarming rate, and best practices and standards are ever-evolving. In this environment, I believe that it is in my clients’ interest to be tool agnostic.
Different Tools for Different E-Discovery Projects
By tool agnostic, I mean that, instead of using one tool for each project, I find the optimal solution for the particular project at hand. I look at each project, decide the functionality the client needs from an e-discovery tool, and negotiate with a service provider to provide me with access to that tool, and their server space for hosting our client’s data, at the best price. There are several key variables that affect the recommended tool and the cost of using that tool.
The Top Three Variables for Choosing an E-Discovery Tool
Here are the top three variables which underlie my thought-process for choosing an e-discovery tool:
- The Volume of Data Involved
Currently, the most prevalent pricing model used by e-discovery service providers is per-gigabyte pricing. For each gigabyte, there will be a fee to process the data (get it into a form that you can read it) and a monthly hosting fee. I have seen prices for processing and prices for hosting (per month charges) each range from $25/gigabyte to $400/gigabyte. There is no consistency in the industry. Vendors can low-ball the per-gigabyte processing fee but raise the monthly hosting fee, or vice versa. There are also other fees, such as licensing, consulting or project management fees, in which costs can be buried. Regardless of the particular pricing method used, more data means higher overall cost for services (although you will be able to negotiate a lower per-gigabyte cost for processing and hosting for a large project).
[Note: One gigabyte of electronic data can be equated to approximately 75,000 pages, or a van filled with paper. A DVD usually holds about 4.7 gigabytes, the equivalent of approximately 350,000 pages.]
- The Type of Data Involved
There is no one-size-fits-all in e-discovery. If the data has been grabbed from the client’s system without focus on the type of data or specific issues in the case, then you need a good culling tool that will help you to quickly sort through the garbage to find the potential relevant data for detailed review. If the data is mainly in the form of e-mails, then you need a tool that can put your e-mail strings together so that you can make sense of conversations and connections between the players and avoid reading the same e-mail numerous times. If the data contains digital voicemail messages, you need a tool to allow you to search, sort and listen to these. If you have many different forms of data, in several languages, then you need a sophisticated tool with translation capabilities to allow you to sift through the data before commencing detailed language-specific review. If the data has come from a proprietary software application, you may in fact require the client to give you access to that particular application before you can review the data.
- What Needs to Be Done with the Data
If the data simply needs to be kept, but not reviewed, there are inexpensive ways to archive the data. If the data needs to be reviewed to pinpoint specific documents sought in an investigation, then a tool with good searching capabilities is very important. If there is a large volume of data which has to be reviewed and tagged for relevance and privilege, then functionality which allows you to cluster and prioritize data based on type and content is needed.
One thing is certain – Unless the volume of data is very small (probably less than two gigabytes), then it will be in the client’s interest to pay for counsel to use a proper review tool to review the data, because opening one document at a time in sequence will not be cost-effective (the fees even for the lowest-priced students or contract lawyers adds up quickly during a review). Just think about the good old days when a box of paper was put in front of you and you had to make sense of it. How much time could you have saved if you had just one copy of each document and they were organized, in order by date, topic, players involved, or any other criteria that suited your thought process? Nowadays, we receive warehouses full of documents, in electronic form. It is simply too costly for our clients if we try to review these documents as if they were paper, one and a time, one after another, in whatever order they might be found.
These are just the top three variables affecting my recommendation for an e-discovery tool. There are other variables, including the timeline for the project, the number and location of users who have to review the documents, and the form of production agreed upon or required by the court or regulator. Upfront analysis considering the set of data and needs will save time and money and let you efficiently get to the heart of the matter.