A service provider for router and network systems sued Cisco for Sherman Antitrust act violations. Cisco in turn sued for copyright and other violations. Multiven, Inc. v. Cisco Sys., 2010 U.S. Dist. LEXIS 71221 (N.D. Cal. July 9, 2010).
Cisco propounded two discovery requests on the Plaintiff. The Producing Party claimed they had a rolling agreement to review and produce discovery to Cisco. The Defendant denied any such agreement. Multiven, Inc., at *4.
The Defendant issued deposition notices many months later that included ESI requests that mirrored the prior discovery requests. Multiven, Inc., at *4. The Defendant followed-up with a motion to compel the original discovery requests. Id.
The discovery cutoff date is September 27. Multiven, Inc., at *5.
The Court found the Plaintiffs could not finish their review and production of electronically stored information with enough time for the Defendant to make any use of the production. Multiven, Inc., at *5. The Court noted this self-fulfilling prophesy was created by the Plaintiff’s review and production protocols. Multiven, Inc., at *5.
The Plaintiff did not use an e-Discovery service provider to search and narrow their ESI because of “cost.” Multiven, Inc., at *5. Note, the opinion is silent on what those costs were, if there was any undue burden arguments or even if a service provider was consulted.
The Plaintiff did not use any search terms to narrow the data for review. Multiven, Inc., at *5. An interesting question is whether or not the ESI was not “de-duped,” or “near de-duped” or “email threading” was at all used in processing the data for review in any litigation support review software.
The Plaintiff claimed it would take an additional two or three months to review their ESI. Multiven, Inc., at *5-6.
Assuming each attorney can work 40 hours a week over three months, with an hourly billing rate of $250 an hour, that would be $120,000.00 for each lawyer, or $600,000.00 for all five.
The Court bluntly stated:
“This is far too long and a new method for this review and production is needed.” Multiven, Inc., at *6.
The Court ordered the Defendant to hire an e-Discovery service provider to help with the “increasingly perilous situation.” Multiven, Inc., at *6. The Plaintiff agreed to the order, because the Defendant was willing to pay for half of the cost for the “collection, search, review, and production of documents.” Multiven, Inc., at *6.
Bow Tie Thoughts
Bad news does not get better with age and reviewing electronically stored information certainly does not get cheaper the closer you get to the close of discovery.
Everyone should remember Federal Rule of Civil Procedure Rule 1: The Federal Rules of Civil Procedure should be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
This fear based decision to conduct e-Discovery like it was a box of paper can drive up costs and run afoul of Federal Rule of Civil Procedure Rule 1. Working with someone with knowledge, either an in-house specialist or outside vendor, can help control e-Discovery costs. This can also help avoid months being lost in document review.
Consider the following:
3 Terabyte External Hard Drive is less than $250.
3 TB worth of data is roughly 6 millions records (based on one complex case)
Estimated Review Rate: 60 records an hour
Estimated review time: 100,000 hours
Estimated Cost at $150 an hour: $ 1,550,000
It would be profoundly expensive and wasteful to try reviewing this amount of data without a service provider’s assistance in the following data reduction and review accelerator protocols:
1. De-duplication based on MD5 Hash Value.
2. Near-De-Duplication based on similar file types (such as a Word Document that was printed to a PDF file. Different file types with the same content).
3. Email Threading, which allows the reviewing attorney to see all email threads at one time to streamline the review.
4. Auto-Coding of the litigation support database with extracted text to reduce time spent conducting objective coding for names, dates and document types.
5. Searching the database based on keywords, dates, or email authors, or any other searchable data, developed after consulting with the custodians and possibly a service provider to find the most responsive data.
Lawyers will always be the ones to try their cases, but a service provider can help attorneys find the responsive electronically stored information they need, so months are not spent reading one email message at a time.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.