Electronic Discovery, Information Management & Compliance

Lewis Brisbois’ national team saves clients 80 percent or more because of their innovative approaches to eDiscovery. We achieve comparable reductions to our clients’ information management and compliance challenges with similar methods. These savings are produced by continuously monitoring costs and evaluating technologies to identify faster, more cost effective ways to provide these services.

The costs of managing, protecting and searching data have soared with the exponential growth of data and devices. Putting this in context: 95 percent of all data today has been created since January 1, 2005 and as of January 1, 2013, if printed would form a stack of paper from the Sun to a point 20 billion miles away or five times the distance to Pluto.

Cases discussed below show how Lewis Brisbois reduces the cost and risk associated with eDiscovery, and then address how effective information management, data security and litigation readiness further reduce costs and increase efficiency.

CEeDS CUTS eDISCOVERY COSTS

Lewis Brisbois’ Cost Effective eDiscovery Solutions (CEeDS) reduces the cost of processing and production by 50 to 60 percent. To compare CEeDS processing to market rates, click here. CEeDS document review workflows slash fees for document review by 80 percent or more.

Recently, representing a startup healthcare provider, claimants demanded $10 million damages. With only $3 million of insurance coverage provided by a declining limits policy, the challenge was how to deal with the ESI and preserve enough of the policy to settle with multiple claimants. The volume of electronically stored information (ESI) subject to discovery – 250 Gigabytes – was so large counsel for the client’s mezzanine lenders projected eDiscovery expense using conventional methods with outsourced reviewers would be more than $6 million. Our aggressive use of analytics, including predictive coding, reduced review time by more than 90 percent compared to original estimates. And, as noted in recent cases like DaSilva Moore v. Publicis Groupe, the results of computer assisted review are more reliable and defensible than those generated by unassisted human reviewers. The real payoff was in expenses saved. Legal spend on eDiscovery was limited to $350,000. The case was settled, the insured remained in business and has prospered and the insurer was able to take down nearly $500,000 from posted reserves.

In another case involving about half the data, the client declined to use CEeDS believing human review remains the gold standard and it is essential to have human eyes on every document produced in discovery. Although we kept the costs lower than projected using cost estimates developed by Grenig, Marean and Poteet in their treatise ELECTRONIC DISCOVERY AND RECORDS MANAGEMENT GUIDE: RULES, CHECKLISTS AND FORMS the outsourced first tier review cost over $800,000. That was more than the total legal spend in the case discussed above.

This comparison reveals that while no claims are identical, comparisons can be made and what counts is the analysis driving the process. With eDiscovery, like every other process requiring a defensible, repeatable workflow, it is critical to identify the objective and employ metrics to monitor each stage of the process and adhere to the budget. Metrics allow for later review to evaluate the efficiency and effectiveness of the workflow. When choosing between attorneys providing eDiscovery services, comparing their workflows and concrete evidence of successful and cost effective implementation makes the decision easy.

How CEeDS works in actual cases has also been described in studies prepared by consultants with whom Lewis Brisbois has worked. To view one such study, please click here.

HOW CEeDS WORKS

CEeDS has many components, including forensics and auditing of work and invoices prepared by others. Five of the principal components of CEeDS relating to managing a client’s eDiscovery needs are set forth below:

Proportional budgeting: Valuing the case, assessing available insurance or other financial resources to establish an appropriate total legal spend. Recognizing the client’s limited means, our legal spend, including eDiscovery, was about 25 percent of conventionally projected cost, i.e., $1.2 million instead of the expected $5 million.

Low cost processing of ESI: Creating a load file suitable for any review platform at $150 per Gigabyte. The cost is 57 percent less than the industry average of $350.

Low cost digitizing of paper: Digitizing the data on paper allows it to be analyzed more quickly and integrated with the content of ESI creating a seamless data set. Additionally, we slash the cost of ingesting the data. Instead of spending $0.90 per document, Lewis Brisbois’ clients spend as little as $0.30 per document, a savings of up to 67 percent.

Low cost analytic driven review: Our workflows use analytics, statistics and bulk coding to minimize review time. The results are more accurate and defensible than those achieved by human review. As important, the cost of superior results is lower because Lewis Brisbois beats the cost of linear review by outsourced attorneys charged at $50.00 per hour, by more than 80 percent.

Low cost social media discovery: Using X1 Social Media Discovery software and Lewis Brisbois paralegals saving 66% the cost of forensic consultants, who typically charge in excess of $300 per hour. In some markets, our vendors have collected determinative evidence for less than $2,500 in cases with six and seven figure exposures. When social media discovery is conducted early in the case, the legal spend avoided amounts to tens or hundreds of thousands of dollars depending on the exposure.

In sum, in numerous cases across the country, Lewis Brisbois provides budgets based on proportionality, delivers processing, analytics and review at 50+ percent savings and reduces the cost of converting paper into digital media by 65+ percent. When social media discovery is appropriate, we save clients a further 65+ percent at a scale consultants cannot because they lack the staff.

Lewis Brisbois uses CEeDS whenever appropriate in matters where attorneys in our many practice groups are retained or to assist clients and attorneys who want to bring our knowledge and the CEeDS cost savings to bear on their cases. Use this link to learn more about CEeDS and find answers to frequently asked questions.

LITIGATION READINESS INCREASES CEeDS SAVINGS

Litigation readiness is an important part of data management but often develops as a way to reduce eDiscovery costs for clients frequently litigating. We assisted one large company to prepare for litigation and reduce eDiscovery costs by identifying features in its existing data storage systems to isolate potentially relevant ESI. The average savings per case exceeded $10,000. We also developed internal workflows involving its IT personnel rather than vendors to collect the ESI identified. Vendors typically charge $500 to $750 per device for collection. A typical case involved 15 custodians with multiple devices. By training the client’s IT Department to collect the data we helped reduce the cost from over $20,000 per case to the expenses associated with two days of time from an IT employee.

As part of the CEeDS package, Lewis Brisbois has established, with consultants and vendors, workflows to standardize and reduce the cost of identifying, preserving and processing ESI. Forensic consultants are part of the team to locate and restore corrupted ESI. Similarly we team with forensic consultants to evaluate the reasonableness of workflows and cost associated with questioned eDiscovery projects.

Because Lewis Brisbois believes clients should not pay twice to identify, collect and preserve data, the CEeDS approach involves evaluating the clients’ systems and providing recommendations about potential cost savings like those described above.

DATA MANAGEMENT

Explosive data growth coupled with the dramatic drop in storage costs has created a perfect storm causing eDiscovery costs to balloon where companies are awash in unmanaged information. As recently reported in the Wall Street Journal, the consequences of failing to manage data for all but large, well financed companies can be liquidation because the cost of dealing with redundant, obsolete or trivial (ROT) information in a data breach or eDiscovery can be enormous. Cases discussed below show costs of responding to these events often exceed the net worth of a small or midsized business.

Lewis Brisbois advises, “Shrink and manage your data footprint” because this makes eDiscovery, information management, compliance, data security and litigation readiness easier and less expensive. Instead of treating eDiscovery, data management, security and breach response as separate challenges to be solved without regard to each other, Lewis Brisbois recognizes managing data better can be leveraged to crush eDiscovery expenses and reduce costs associated with security, privacy and litigation readiness. To find out more about how Lewis Brisbois can work with you to address these challenges, please click here.

Failing to manage data allows ROT to multiply and dramatically increases the costs of determining what information is resident, responding to data security incidents and eDiscovery. The experience of a client’s downstream consultants tasked with auditing medical bills illustrates the point. They neither maintained a chain of custody on data they received from our client and others nor addressed their ROT. The consequences of their not managing data were compounded by storing unencrypted medical records indefinitely. When the servers were stolen, the unencrypted data and lack of records management precluded access to any safe harbors. State and federal data breach notification requirements obligated the company to inform all the potentially affected persons, including those referenced in tens of thousands of obsolete files serving no business purpose. The projected costs of eDiscovery were multiplied several fold because more than a decade’s worth of files would have to be reconstructed, preserved, processed, reviewed and produced to multiple parties. Faced with projected expenses several times the company’s net worth and annual revenues, management, done in by ROT, opted for liquidation.

Lewis Brisbois’ approach to managing data aggressively and narrowing the definition of business records to those which serve a bona fide business purpose or are required to be maintained by law or regulation helps our clients survive when similarly situated businesses are forced to close their doors. The same event which closed the doors of downstream consultants who had no data management program caused minimal disruption and less than $10,000 for legal fees and forensic investigation costs. Our client’s chain of custody of medical records and compliant retention practices established healthcare data was not received from a covered entity or business associate. So, the client was not subject to HIPAA or HITECH when downstream exfiltration of data occurred.

Our clients survive similar breach events because, with our assistance, they:

• adopt defensible document retention and destruction protocols, which when followed, limit ROT and the damage it can do to the bottom line;
• implement appropriate administrative, physical and technical security standards, including encryption, for PHI and other confidential information, which reduces or eliminates reporting obligations and regulatory scrutiny in the event of a breach; and
• organize and limit data to that serving business needs because this makes data more accessible at lower cost and dramatically reduces the expense and burden of eDiscovery.

Data security events will occur, but their consequences are manageable even if compliant data management practices have not been fully implemented. Businesses following our advice have escaped fines and the demands of a remedial action plan, as described more fully in our Data Security Practice materials.

Lewis Brisbois’ experience helps clients using proper Data Management policies avoid regulatory and litigation black holes that contributed to putting similarly situated companies out of business. Proper management of Data Security events has allowed even those clients whose data was exfiltrated and who did not have compliant data infrastructures to avoid fines and remedial action plans. Litigation preparedness and use of proven, cost effective workflows means our clients’ eDiscovery costs will not break the bank. By constantly monitoring costs and evaluating new technologies Lewis Brisbois is able to identify better ways to address 21st Century data challenges, whether they arise in the governance and compliance, data security and protection or litigation readiness and eDiscovery areas. We look forward to helping you achieve similar savings.

Vice Chairs

• Craig Holden (Partner) - Craig.Holden@lewisbrisbois.com, 213.599.7818