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This will be the first article in a series that I plan to write about the industry of eDiscovery. For a topic this large, I feel it will be easier to eat the elephant one bite at a time. I am also confident that I am not going to make any friends in the litigation support vendor market with this series of articles and may actually loose a couple, but someone has to say it. eDiscovery is a mess. It is comprised with complexities, frustration, confusion, and uncontrolled expense. As many of you are aware, I have worked in the eDiscovery industry as a technologist for years. I would often wonder why more legal teams did not embrace the efficiencies of eDiscovery.  As I step back and look at the industry, along with reading and hearing the war stories surrounding eDiscovery, I can't say that I blame them. eDiscovery, when implemented properly, should  be the extension of the discovery process that includes electronic information. When conducted properly, it should facilitate the success and efficiencies of the discovery process. But eDiscovery appears to create additional problems and foster uncontrollable expense. For these reasons, I am going to dedicate the next few issues of this newsletter  attempting to simplify and demonstrate methods of both efficiency and cost savings through each phase of the EDRM lifecycle.

Want to know how you can directly save costs without sacrifice? I am just going to say it, stop "TIFFing" out all of the documents that you review for your client. When you finish drafting your complaint or motion for summary judgment, do you convert it to a TIFF before you perform the final review? Then why are you converting all of your client's documents to an image before you review them? The document conversion aspect of processing is one of the biggest wastes of money in eDiscovery. Many feel that this processing phase of eDiscovery is the most expense, TIFFing every document before you review it is a large portion of that expense. Let's go ahead and address the arguments you are making right now.

• I must convert the document to an image to redact. You are correct and I am not discouraging that. But you should only convert, "on the fly", the documents that need redacting.
• The format requested is TIFF document with a load file. You can still meet this request. Only convert the documents that are to be produced.
• My produced documents must have Bates Stamps. Just as the other examples, you can still do this. Can you guess my next statement?
• My vendor states that all electronic documents must be processed and converted before they can be loaded into the review platform. Ask them why. If they cannot provide you with an adequate answer for the additional expense, find another vendor.

If you no longer endure the expense of converting all documents to a TIFF image before loading for review, congratulations. This should have increased funds for you and your firm to better litigate your client's case. There is still an intermediary step to watch out for: "native" processing before loading into a review platform. Many times you are being charged to natively process everything, and then charged again for the review platform, which may or may not be provided by the same vendor.

 As you can see, using a basic unified eDiscovery platform for the processing phase can save your client 75% when compared to TIFF conversions and 66% when compared to early case assessment platforms. For simplicity, I have not provided estimates for native processing and then the use of another review platform. That scenario would be in the same price range as the ECA option. I have also not included the costs of production. One last note is the price used for the unified eDiscovery platform is the pricing model that we provide to our clients and pricing of other unified eDiscovery platforms may vary.

My hope is that this article has caused you to think about the expense of the eDiscovery process that you have direct control over. In the rough economic times we are currently in, these savings could potentially be applied to litigating the case. As I stated early in this article, eDiscovery is a process, not a product. I will continue this theme as we discuss each phase of the EDRM lifecycle. Next month we will go back to the beginning, the information management phase. When this phase is properly implemented, legal counsel adds great value to their clients and eDiscovery requests are more management.

I usually prefer to have all eDiscovery case law in a separate section. However I wanted to bring special attention to this case, and the reason for sanctions.

GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A&M Fla. Props. II, LLC), 2010 Bankr. LEXIS 1217, 20-21 (Bankr. S.D.N.Y. Apr. 7, 2010).

The Court imposed monetary sanctions, for 1/2 of the cost of forensic searches and the costs of the opposing party's motion to compel, for failure of counsel to "fulfill its obligation to find all sources of relevant documents in a timely manner. Counsel has an obligation to not just request documents of his client, but to search for sources of information. . . . Counsel must communicate with the client, identify all sources of relevant information, and 'become fully familiar with [the] client's document retention policies, as well as [the] client's data retention architecture.' . . . A diligent effort would have involved some sort of dialogue with [their client] . . . and any key figures . . . to gain a better understanding of GFI's computer system. See Phoenix Four, Inc., 2006 U.S. Dist. LEXIS 32211, 2006 WL 1409413, at *5 (stating that counsel's effort to discover all sources of relevant information "would involve communicating with information technology personnel and the key players in the litigation to understand how electronic information is stored."). Had he posed the proper questions in these dialogues, Nash would have gained a more nuanced understanding of how GFI employees stored emails much earlier in the discovery process. Assuming [plaintiff] . . . as operating in good faith, it is almost certain that the archive folders would have been mentioned."

Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D.Colo. June 15, 2010)

In this discovery dispute, the defendants objected to the special master's ruling, arguing the sanctions imposed (jury instruction and expenses) were not severe enough to address the prejudice caused by the plaintiff's willful spoliation of approximately 43 hard drives. The defendants requested the entirety of fees and costs associated with litigating the sanctions motion and sought dismissal. Addressing the dismissal request, the court found that the mitigation of actual prejudice through the jury instruction and the plaintiff's otherwise responsive production warranted a lesser penalty. The court also noted there was no evidence the plaintiff acted in a "premeditated" intentional manner, but rather was merely negligent. Turning to the defendants' request for $130,000 in expenses, the court noted that the defendants spent "too much time and money . . . on this matter." However, in light of the nature of the wrongful conduct and the importance of the evidence destroyed, the court awarded the defendants $89,395.88 in attorneys' fees and costs.

Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D.Neb. June 24, 2010).

In this environmental contamination dispute, the plaintiff sought a temporary restraining order and preliminary injunction against the Environmental Protection Agency (EPA). Seeking to evaluate the merits of the EPA's lead contamination claim, the plaintiff requested information pursuant to the Freedom of Information Act (FOIA). Based on information contained in e-mails gathered from the initial disclosure, the plaintiff argued that an EPA supervisor ordered employees to destroy information responsive to the plaintiff's FOIA requests and "relevant in future enforcement actions." Granting the temporary restraining order to prevent further destruction of evidence, the court ordered the defendant to produce all relevant data and designate "an individual well acquainted" with its technology, electronically stored information systems and management structure to ensure proper enforcement of the order.