Budgeting, Part 2: Budgeting for e-Discovery (By Angela Masciulli, ACP, MPS)
Budgets are not new or difficult. We use budgets in our everyday lives for personal needs and wants, but when it comes to legal budgets, it is easy to lose focus on their importance to client service and case success. Thoughts of eDiscovery budgets can provoke even more fear because of the anticipated complexity and cost. A few budget fundamentals, however, can move you from upside down to right side up at a lower cost with better client outcomes and less stress.
1. When. Begin budgeting as soon as possible. It begins with simply asking “How much is this going to cost?” Document anticipated costs and your reasoning. Remember that budgeting is an ongoing process. Any budget is ever changing and must be monitored and updated. Surprises happen in every case, and surprises in the discovery phase can be particularly costly. Accurate budgets allow more effective client communication, better problem resolution, and often lower cost.
2. What. It’s important to identify, sooner than later, what types of data are potentially relevant. The most common forms of data are emails, .pst files, social media posts, images, Word documents, Excel spreadsheets. However, don’t forget commonly overlooked forms of ESI such as voicemails, video, websites, metadata, databases, and graphics/photos.
3. Where. Help your client identify where their potentially relevant ESI is or may be located and the volume therein. Look at hardware, software, the Cloud, and consider how many devices each custodian uses to determine where the data may be stored.
4. Who. Estimating the amount of relevant data is directly related to the number of potential custodians involved in the case. Start with a subset of the most obvious custodians. Preserve, collect and review their data in order to determine whether there are additional custodians with potentially relevant information.
5. Why. I am not sure that any conversation about eDiscovery budgeting would be complete without mentioning proportionality. In short, think long term. Skimping on collection at the beginning of a case to save money up front can cost much more in the end.
Think long term and lean towards over-inclusive for early collections and adjust the scope as the case proceeds. It is a myth that you have to process everything that has been extracted in collection. A second collection after a Motion to Compel can cost the client triple what a first collection may have cost. Tighter deadlines, the possibility of new and/or missing data, and the chaos of reacting to a court order is a situation you want to avoid for your client.
Recovering eDiscovery costs after case resolution is another important detail to always consider. Although courts are conflicted on allocating eDiscovery costs, creating a defensible eDiscovery strategy, including a budget, help keep costs proportional to the case. Proportional costs are more favorable for recovery.
6. How. Designate someone (a Project Manager) to keep their eye on the big picture or the overall eDiscovery project, especially the budget. This person should be responsible for:
a. Researching the case outcomes for your particular matter type in the jurisdiction before the assigned judge. Consider outcomes with counsel and the litigation stage. These are helpful metrics to analyze not only for case settlement or trial costs, but for other concerns such as additional costs for opposing counsel’s lack of responsiveness or discovery delays.
b. Case phase. Account for costs in each phase of eDiscovery from collection, processing, review, production, and reviewing opposition’s production. Knowing the amount and location of ESI, as well as the number of custodians, assists in more accurate budgeting for each phase.
c. Volume. Track the amount of data per custodian by case matter type. Experienced eDiscovery project managers can help anticipate costs for processing a certain volume of ESI by the number of custodians in a case.
d. Storage. If a significant amount of data is at issue, storage can be costly. So too can improperly disposing of ESI. Make sure to properly communicate with your client and opposing counsel about storage and retaining ESI.
e. Tend to the details. Do not forget to decide how much you intend to pay for document reviewers, budget for vendors, and review software costs. These are areas where you can negotiate and control costs significantly.
f. Document what is specifically performed and by whom at each stage of the case. If a case is dormant for an extended period of time or timekeepers change, documentation can save time, money, and legal pitfalls.
g. Communicate effectively with your client, counsel, and timekeepers is the simplest way to cut case costs.
h. Revisit at the end of each case what went well and lessons learned to improve the process and project success next time.
Budgeting for eDiscovery is a fundamental tool for better client outcomes, less stress, and lower case costs. Budgeting early and often is necessary for the greatest effectiveness, especially as the amount of data and technology involved in cases grows. E-Discovery IQ can offer more expert guidance on budgeting and e-Discovery project management.
Angela Masciulli, ACP, MPS, is Senior Project Manager at E-Discovery IQ, LLC, She provides paralegal, eDiscovery project management, and litigation support services to attorney clients from early case assessment through trial, including preparation of discovery plans, document reviews, production, preparation for meet and confers, conducting witness interviews, hold notice management, ESI evaluations, responses to discovery requests, preparation of court document drafts, and research memorandum. Read more about Angela here.
Carla Bauer, PMP, RCA is Founder and President of e-Discovery IQ. She can be reached at (859) 409-3979 or Carla.Bauer@eDiscoveryiq.com