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Sinbad the Sailor v Emily Post:
Will Cooperation Make E-Discovery Affordable?

Gregory L Fordham
May 2009

In early 2002 the legal world heard tales about cyber monsters spewing lethal discovery costs that had to be shifted. Afterwards, sightings of these deadly wealth consuming creatures increased.  As a result, those daring to sail the litigation seas were warned to avoid them at all costs. In time weaknesses were discovered that enabled brave sailors to journey into those waters and still return to tell their tales.

Tales from a recent voyage, however, illustrate that the real danger could be the rigidity with which ship captains rig their sails and set their course.The tale of William A Gross Construction Associates, Inc. v American Manufacturers Mutual Insurance Co., 2009 WL 72494 (S.D.N.Y.) involves the production of e-mails stored on a server and the selection of keyword search terms in order to find relevant documents.

Since the parties were unable to agree on the terms, the Court was forced to fashion the list of search terms itself, which it acknowledged was less than perfect. In telling its tale the Court said that, “This Opinion should serve as a wake-up call . . . about the need for  . . .  and cooperation with opposing counsel . . “

In an earlier voyage, Bray & Gillespie Management LLC v Lexington Insurance Co., 2009 WL 546429 (M.D.Fla), the difficulty involved the form of production and whether it contained metadata.

In that case the failure to cooperate was so severe that the Court said, “This bad faith conduct disrupted and delayed the discovery process . . . The bad faith conduct also unreasonably multiplied the proceedings in this case.”

In a still earlier voyage, Mancia v Mayflower Textile Services Co., 2008 WL 4595175 (D.Md), the Court blamed the skippers for their rigidity and failure to cooperate as required under Rule 26(g).

Even the Oracle in the far away land of Sedona published its “Cooperation Proclamation” in July 2008.  In that writing the Oracle reminded us that, “The 2006 amendments to the Federal Rules specifically focused on discovery of ‘electronically stored information’ and emphasized early communication and cooperation in an effort to streamline information exchange, and avoid costly unproductive disputes.”

Clearly, the above tales involve discovery disputes and removing those would have made discovery more economical.   Discovery disputes are not the same as the execution of electronic discovery, however.

Thus, except for the extra cost of motion practice, is it likely that cooperation can improve the execution of e-discovery? 

The answer is likely “Yes”.  To examine this answer consider the elements of e-discovery execution that are depicted in the EDRM [Electronic Discovery Reference Model (see www. EDRM .net)].

In that model, the sections from Identification to Production would be impacted by cooperation.  Furthermore, there is quite a symbiotic relationship between all of those sections such that influences on one section affect the others.

For example, effective Identification of ESI can result in greater efficiencies during Preservation and Collection as well as reduced deposition discovery and potential spoliation sanctions.

In addition, effective Identification can result in more accurate discovery planning resulting in more efficient execution. 

Although each case is different, it is widely believed that most of the e-discovery dollars are consumed by the Processing and Review stages.  Processing because of the volumes of data and Review because of its incremental costs. 

Processing costs are estimated in the range of $500 to $1,000 per gigabyte (GB) while review costs are estimated in the $12,000 to $15,000 per GB range.   The Processing stage is used to reduce the volume covered by the Review stage.

To illustrate the consequence of cooperation on these two efforts, consider the previously discussed keyword search case of Gross Construction.

Not only was the dispute inefficient the consequence of an overly inclusive keyword search means more data to process and review.  On the flip side, if the keyword search is overly restrictive it means second and third bites at the population of ESI to find relevant documents with the corresponding increased costs of Processing and Review.

So, clearly cooperation can make e-discovery more economical.  However, it will take innovation, competence and attention to the entire lifecycle to deliver swift and economic justice.