It’s official. We’re in a recession. With little certainty as to whether things will begin to turn around next quarter, next year, or next decade, organizations are looking anywhere and everywhere to cut costs. Looking for a good project to drive cost savings in 2009 that does not necessarily require purchasing more software or hardware? Consider creating an ESI Data Map (electronically stored information). We’ve seen good ESI Data Maps save companies literally hundreds of thousands of dollars.

Litigation is counter-cyclical to the economy: when the economy goes down, litigation goes up. Today discovery comprises 50 percent (on average) of the cost of litigation. The bulk of these discovery costs is for electronically stored information. On average, a large company has more than 150 current matters being litigated. Even small and mid-size companies are being hit hard by the uptick in litigation. Concurrent with this uptick, we are also seeing the plaintiff’s bar use discovery as a tactic in litigation by expanding the scope of discovery (and subsequent costs) in the hope of bringing the opposing party to settle. Today companies have more data and ESI than ever, so this tactic works.

While there has been much discussion about reducing the costs of ediscovery by bringing more of the processing and management in house with archiving and litigation management tools, companies sometimes overlook a more basis step of limiting ediscovery costs—reduce the scope of what needs to be discovered. The December 1, 2006 Amendment to the Federal Rules of Civil Procedure limits discovery to “reasonably accessible” electronically stored information. Specifically, Rule 26(b)(2) clarifies that if required to search data which are not “reasonable accessible,” the court will permit “cost shifting.” In other words, if you can show the cost of discovering inaccessible data outweighs the benefit of having it, the court can order the other side to pay for these discovery costs. The practical effect when this cost shifting occurs is that in most cases the opposing party becomes much more circumspect (some might say reasonable) in what they want to be produced, reducing the scope of their initial requests when they know they will have to foot some of the bill.

What data are “not reasonably accessible?” While there is some case law in this area, practices vary tremendously from court to court and even judge to judge. Many of the Federal Court districts have each implemented their own, somewhat distinct protocols. It is important to remember that instead of a clear) between both sides.

In Federal Court, and many State Courts, this argument declaring data not reasonably accessible needs to be made early – within 99 days – at the Rules 26(f) “Meet and Confer” discussion. Therefore, determining and documenting which data are not reasonably accessible is typically something that needs to be done before litigation strikes. If you wait until you face “the big case,” often companies scramble just to be responsive, and often there is just not enough time to do a good job on documenting and building an argument for the data not being reasonably accessible. We’ve seen a fair amount of extra discovery by companies that were unprepared. Unfortunately they get little help from ediscovery vendors in limiting the scope of discovery, who make more money if there is more ESI to process. Enter the ESI Data Map.

The ESI Data Map
What is an ESI Data Map? It’s a written overview or “map” of ESI for use by legal counsel when preparing for the “meet and confer” process. It typically includes:

• Likely custodians of relevant electronic materials
• Relevant electronic systems, with scope, character, organization, and formats employed in each system; and any limitations of accessibility.
• The name of the individual responsible for electronic document retention policies, and a description of the retention policies for these systems.

A good data map does two things: First, it allows organizations to more quickly locate relevant ESI. Often overlooked, but equally important, a good ESI Data Map also details and makes an argument for which data are not reasonably accessible. Walking into a “Meet and Confer” meeting with a good data map allows you to be much more proactive in limiting the scope of the discovery: “We do not need to discover in our remote offices because they don’t have any documents relevant to your request. We have an up-to-date map, and we’re happy to go see the judge together if you disagree.” If you can cut the scope of discovery back by 20 percent, 30 percent, or more; that will translate into real, clear, and often significant savings. Clearly, creation of an ESI Survey Data Map requires close cooperation between legal and IT. Typically map creation is a joint project between both legal and IT. In our experience, it’s typically 30 percent legal; 70 percent IT. Sometimes IT has this information readily available, and other times storage systems must be surveyed so that the ESI can be classified and captured within the map. There are different types of maps, and often these projects need not involve any new hardware or software. (See Contoural’s webinar on ESI Data Maps which discusses the different types of maps.) Often organizations have the rudiments of a data map in their data classification or DR planning, but while this is a good start this information needs to be augmented to be used effectively as an ESI Data Map.

The tricky part about this is that ESI Data Maps are relatively new, and if a company has historically had a lower litigation profile, or has a practice of depending on (expensive) ediscovery vendors, some may argue they don’t need it. It is difficult to think strategically with a strong focus of tactical cost-cutting. Nevertheless, a good data mapping project has the potential to recoup the time investment in a single case. I’m quite frankly surprised we haven’t seen more companies creating them, although we’ve seen many organizations start looking at them within the past six months. Now that the focus is cost cutting, the timing couldn’t be better.

--Mark Diamond is President & CEO of Contoural, Inc. You can e-mail Mark and markdiamond@contoural.com .

 

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