Collection: A Look at Different Approaches to Cut Cost
With the proliferation of data, we are often asked to perform collections at the request of client’s and/or their counsel. These collections can be performed in a variety of ways, but the scope and type of collection always drives the overall processing, hosting, review, and production costs. So what’s the best collection strategy for reducing discovery costs while fulfilling your client’s discovery obligations? Is it the broad collection approach, the targeted collection methodology, or the hybrid approach?
The broad approach is the most traditional approach performed by vendors and consists of gathering all the data preserved for a given matter and loading it into a processing and review platform for attorney review. This type of collection typically results in a large volume of non-responsive data being gathered, which must be analyzed and filtered out to identify the responsive documents to be produced to the opposing counsel. Although the costs associated with this collection approach can be substantial, more and more vendors find themselves performing these types of collections because they're less intrusive to the custodians and permit for the gathering of full data sets which can be revisited, if the scope of the original discovery request changes. Although some matters, such as internal investigations lend themselves to broader collections, most matters don’t require such extensive collection efforts. As a result, broader collections are often limited to just a few key custodians, especially with the enactment of the new Federal Rules which aim to promote the concepts of cooperation and proportionality in discovery.
The targeted collection methodology is another collection approach that is often performed by vendors at the request of client’s or their counsel. Although some attorneys avoid this approach out of a concern that responsive data will be missed, others prefer this approach because it typically leads to smaller data sets being gathered, while reducing the processing, hosting, review and production costs that impact clients. To defensibly perform this type of collection, vendors always rely on the guidance of an experienced attorney who’s responsible for documenting the collection process in accordance with their discovery plan. Generally, this process involves custodial interviews, which allow each custodian the opportunity to explain how they maintain and organize their data, while also identifying the locations of their discoverable data requiring collection. Once the interview is complete, the relevant data from each data source (i.e. email, hard drive, network drive, etc.) is identified and collected by the vendor under the watchful eye of the attorney. To support the defensibility of this collection approach, the attorney is responsible for memorializing his interview notes and incorporating the locations, folders, and sources containing potentially relevant data into a discovery plan. Although this type of collection has its benefits, it’s important to note that if the scope of the discovery changes after the initial interview and collection, then every custodian must be re-interviewed in order to satisfy your clients’ discovery obligations.
Finally, the last collection approach performed by vendors is the hybrid approach. Essentially, this is a combination of the approaches referenced above and is typically implemented in order to balance the costs of discovery against a custodian’s busy schedule. In other words, there are instances where vendors perform a combination of broad collections and targeted collections for the same matter. Typically, the broad collections are only needed for a few custodians based on their availability, location and/or schedule while the rest of the collections are performed in a targeted manner.
So what’s the best collection strategy for reducing discovery costs while fulfilling your clients’ discovery obligations? The answer depends on the matter and is the responsibility of the attorney handling the discovery and implementing the document review strategy. With the enactment of the New Federal Rules, courts are continuously stressing the concepts of cooperation and proportionality. They expect attorneys to understand their clients IT infrastructure and to implement well designed and defensible collection strategies. As a vendor, our responsibility is to gather data in a defensible manner at the direction of counsel and have it staged, processed, published, and produced in accordance with the parties negotiated production specifications. While over collecting data is always a concern, clients and their attorneys understand that certain matters require the application of the broad collection approach. Although this approach can increase discovery costs, the use of innovative review platforms which incorporate analytical tools such as email threading, concept grouping, near dupe analysis and Technology Assisted Review/Predictive Coding are helping to eliminate irrelevant data gathered through these broad collections. As a result, the only way to avoid the costs of discovery while fulfilling your clients discovery obligations is to have a knowledgeable attorney develop a proportionate collection strategy that’s defensible, avoids the over-collection of extraneous data and reduces the volume of data requiring processing, hosting, review, and production. By implementing this strategy the overall costs associated with performing discovery for any matter should decrease while simultaneously satisfying your clients’ discovery obligations.