In the absence of a case-critical type of document, however, tailoring RFPs will avoid the expense of hosting additional documents on a database and sifting through the potentially millions of pages of low-value documents.
3. Consider outsourcing document collection, processing and review. After a party defines the universe of documents that will enter the litigation pipeline, core e-discovery costs incurred to produce its own documents involve collecting, processing and reviewing them. According to a 2012 report by the Rand Corp. titled "Where the Money Goes," 8 percent of the cost is attributable to collection, 19 percent to processing and 73 percent to reviewing ESI.
In-house counsel should consider whether it is more cost-effective to bring any of these services in-house or to use an outside vendor with negotiated rates. If the company opts to use outside vendors but does not litigate cases frequently enough to develop expertise in vendor negotiation and pricing, an outside counsel can help fill the knowledge gap.
4. Play an active role in reducing first-level review costs. Many articles discuss taming the 3,000 pound gorilla of e-discovery costs: document review. The bottom line is that in-house counsel should play an active role in determining how to review documents to ensure efficiency and cost effectiveness.
The most burdensome part of this process is the first-level review because of the sheer number of documents. Some strategies for containing costs at this stage include using lower-cost attorneys to review the documents, employing search terms, the somewhat-controversial predictive coding, and utilizing software to group and de-duplicate documents. The legal department always must balance cost savings against the importance of identifying key documents.
Employing these strategies will not make e-discovery inexpensive; given the volume of documents in a typical patent case, that goal may prove elusive. But doing so can help keep e-discovery from overburdening a company's litigation budget.
Victoria Wicken is a principal in McKool Smith in Austin, and Leah Buratti is an associate with the firm.