Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Tuesday, January 03, 2006

Pre Collection Filtering - A cost saving reality  

Once upon a time, the cost saving move was to go the EDD route. The alternative (paper which must be copied, Bates labeled, scanned, coded, boxed, shipped, copied again, stored etc...) was just too scary to fathom.

Then along came the unexpected, a way to save on EDD! Just when the electronic data discovery game got good from a cost perspective, it amazed everyone by getting better (and cheaper) via pre process culling. The ability to pay to process only a designated subset of that which had been collected was a Godsend. At $2,000 a gig (in those days) any winnowing down of the information to be processed was as good as money in the bank. Collect everything and then put in some key words to filter down what you pay to process. The greatest thing since chewing gum... or was it?

Almost.... but cuttind edge technologies have again stepped up the play.

Now, one vendor, Guidance Software, has trumped 'em all in the e-discovery realm. They have software/services that allow for pre collection culling. This means that instead of grabbing the whole darn enchilada (and paying for it too) and saving only by filtering out that which did not have to be subsequently processed, Guidance lessens the loads significantly by allowing the corporation (or law firm representing the corporation) to not have to shell out for anything (even harvesting costs) for the data that is irrelevant or otherwise outside of the discovery request/subpoena.

Imagine the implications. This can bring costs down by ninety percent or more by Alextronic's calculations (albeit, Alextronic took algebra twice in high school and only got through it by copying from Lisa McLaren's test after distracting her with a stink bomb... but that's for another blawg entry). Where was I? Yes, if a large pharmaceutical company is defending a patent dispute concerning drug Z's production for the children's medicine market in 2004 and emails and spreadsheets from the Western R&D Department Managers are requested, instead of paying some collection outfit to mop up the entire she-bang, software can be introduced which will run through the enterprise and sniff out date ranges (2004) and key terms "Drug Z" and "Children" and only lift that for processing. The savings are front-ended.

Many naysayers will argue that this initial pre-shrunken collection effort is too narrow and therefore can be successfully challenged by the opposition. I say phooey. Look at some of the recent case law including the reknown Zubulake decision which holds that only "relevant" data need be harvested upon a reasonable discovery request or subpoena. If it is clear that the parameters used to filter the collection comport with the scope of the discovery request [ie, if a reasonable person would conclude that reducing the scope of the initial collection to 2004 and the keywords selected where on point, then in all likelihood the courts would uphold and even outright bless (as the courts did in Williams v. Mass Mutual Life, 226 F.R.D. 144 (D. Mass., Feb. 2, 2005), Wiliford v. State of Texas, 127 S.W. 3d 309 (Tex. App. 2004), State v. Cook, 777 N.E. 2d 882 (Ohio App 2002) the actions of the wise and frugal producing party].

In sum, the logic is simple. If you or your clients are not pre collection filtering but are only pre process filtering... someone is probably paying too much.

Tune in next week when Alextronic discusses the new law firm trend of promoting attorneys to the role of "E Discovery Partner."

posted by Alexander | 7:22 PM


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