The eDiscovery vendor market touts its great and new technologies as offering superior results beyond the older but dependable search-tag-cull features. Analytics, Continuous Active Learning and Artificial Intelligence are now common offerings compared to a year ago. These advanced technologies go beyond the keyword approach and present exciting new ways to discover what you didn’t know you didn’t know, getting to the most relevant data faster, and assimilating the collected data from a client or from an adverse party. But did you know, with most vendors, you can’t apply these technologies and cull even one byte of data unless you pay a processing fee first? Processing is the high ticket price to cull data.
Processing is the technology necessary to convert the metadata, the text and the file to a database loadable format while at the same time identifying any attachment or embedded object relationships and maintaining them. Processing includes assigning a unique “Hash” value to identify duplicates. It includes identifying program files and problem files due to password protection, corruption or proprietary formats, and identifies unique unknown file formats. I’m not saying processing is not good; it’s necessary; all the data has to go through processing. It’s the cost that is problematic.
Those firms that already have an in-house hosting solution may want to drop out of this article at this point since they have the flexibility to deal with cost restricted matters. However, unless you have no ceiling on the size of projects you maintain in house, you’ll run into some level of this challenge once you outsource the solution.
Putting the “E” back into ECA
I used to get up on a soapbox to shout that my mission is to put the “E” back into “ECA” (early case assessment). The point I’ve made is most case assessment is not done early. It’s average or late assessment. Too many attorneys have not been open to use advanced tools which are necessary to get their arms around their client data faster. Without early case assessment, strategic negotiating opportunities at the meet and confer can be lost before agreeing to a scope of discovery.
I got off this soapbox after I saw too many clients that could not afford it. There is no early case assessment, or any assessment, if you can’t afford to process all the data. And, you can’t pick and choose what data you want to process until you process all the data. It’s a circular trap. The processing cost is a real barrier to these solutions.
Inflexible Cloud Solutions
Most cloud solution vendors charge on a per-gigabyte basis to get your data into the system. It’s been a standard practice and can be a roadblock to automating a case. You can’t review emails in a PST container, search across loose files or search images that have no text, to get a measure of your case, unless you process it first.
The cloud vendor market has made this a standard charge for too long. It has become a hurdle to clients that can’t justify the upfront cost which in turn makes the attorney job a far greater challenge. Examples include internal investigations, 3rd party requests, pro bono clients, non-profits, arbitrations, and other limited budget matters. It’s also a hurdle to clients that just don’t want to pay for these services.
Vendor subscriptions are a way to lower these costs. They are minimum data commitments in an agreement with a vendor over a minimum number of months or years for a reduced per gigabyte rate. These look like good deals but we found out the hard way that not all vendors and subscriptions are equal. Files that are processed then hosted create database overhead to manage them and expand once the files are unpacked into the system. Expansion rates vary by platform and overhead may be charged differently. We’ve seen expansion rates range from 33% to 300% (no joke). Some vendors charge for some overhead that others do not. The final cost must account for these variables. For example, $20 per gigabyte with 33% expansion is cheaper than $10 per gigabyte with 300% expansion. Just do the math over time.
The bottom line is some subscriptions treat you as if you were in business for yourself. All the data generated, no matter where, eats into your gigabyte container.
Since these vendors include processing as part of your subscription, you can use your allotment more quickly than expected. You may need to purchase an overage. Soon, the reduced pricing in a subscription is offset by these variables.
Creation of “C3”
We’ve addressed this need for a solution under an initiative we call “C3”. C3 is a reference to collaboration, culling and cost savings.
We have used LAW in house in the past and leveraged it for a variety of useful tasks. Until CloudNine purchased LAW a couple years ago, it remained a great tool for our department but any collaboration on culling data meant looking over the shoulder of someone in our department. Similarly, data on a hard drive would need a summary (a triage) so that macro decisions could be made on what could be left out to reduce the footprint (e.g., date range, custodian sources, file types, email domains, etc.). Collaboration on this process was mediocre between spreadsheet summaries, email or phone conversations. CloudNine has helped to solve this challenge by creating Explore and Explore Web that provides first pass analytics and tagging so culling decisions can be made with our department while looking at the data together without the per gigabyte fees. It also integrates with LAW. Creating a recovery model with this solution offers significant savings.
Another benefit with this on premise solution is access to the data. Although cloud solutions offer a near-line option where you can take culled data and store it in a cheaper per gigabyte rate per month (probably on older/slower discs), you do not have access to the data without having the vendor doing so at a cost. With Explore Web, whatever data is left behind remains visible and accessible to attorneys throughout the life of the case.
Time for a Change
Beyond an on premise solution, there is a need for a new model of pricing to promote ECA as well as culling. New projects should not be penalized for getting all the data into a system when it’s typical some of the data in the delivery is not relevant. Why should we pay the same price for data that we do not need in the review project just to get it into a project? Since it’s mostly machine time and cheap storage anyway, why not remove the hurdle to get data into a project and just focus on the data promoted for review?
The cloud vendor market is starting to change but not quickly. Companies like Logikcull charge to get your data into a project at $25 per gigabyte but then limit your monthly cost to a fixed $250 no matter how much data you leave in it. The processing cost is also based on the compressed size of the data. And, they promote compressing all your files into a zip container. Using a zip file utility with a compression rate of 75% you can reduce your processing fee by the same amount. They have also recently announced a $350 per month fixed cost without any processing fees.
There are others. Thomson Reuters’ eDiscovery Point doesn’t charge for any processing but only on the data you promote out for review. Nextpoint just charges a fixed cost for each user account and no charges for processing or data hosting. These solutions have pluses and minuses but are closer to the mark for real change.
Reducing or removing the high ticket price to get data into a system so it can be culled is the future. It must be. It will remove the barrier to projects that can’t afford these services in today’s market. It will remove the hurdles to get your arms around your data early and understand it. It will not only save money but open new opportunities to reveal your strengths and weaknesses earlier. It will provide a strategic advantage and maybe help avoid litigation all together. That’s something to get up on a soapbox for.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
About the Author
Lane Lowman is the Director of Litigation Support at Barnes & Thornburg, an AmLaw 100 law firm based in Indianapolis with 18 offices. Lane previously worked in Chicago for a couple large law firms for nearly 15 years.
Lane is originally from the West Coast United States having grown up in Oregon and Northern California. He went to college in the Midwest, married and stayed (a decision he re-visits every winter). Lane also attended school near Lausanne, Switzerland and lived in Amsterdam. He is passionate about classical string instruments and small luthier acoustic guitar shops.