who ran your last trial off an iPad, and
you’re still leery of discovery databases
because of their cost. Fair enough — depending on the product, they can be
spendy. But consider that for each of the
federal criminal cases in which my firm
coordinates discovery, the courts have to
approve funding. We’ve been very successful petitioning for database funds
because courts recognize their value in
containing costs while preserving quality representation.
Different products are tailored to suit different budgets and needs. AccessData
offers a one-year license for Summation
Express, the small-firm version of its
flagship database, for around $2,000 a
year. Catalyst’s services are cloud-based
and available à la carte without the
need to download software or purchase
hardware. In a survey of Washington
litigators conducted earlier this year,
over half — 57. 4 percent — reported they
would decline some cases because of discovery costs. 1 Roughly the same percent
reported eschewing databases or other e-discovery services. Next time you’re presented with a big case, think whether you
want to add to that statistic. A discovery
database could allow you to take the case
both effectively and cost-effectively.
Using Discovery Databases
Let’s say you’re sold — how do you use a
discovery database? Vendors offer dem-
onstrations and trainings to help with
the different features of each database.
But to answer the more general ques-
tion of how to fit a database into your
case preparation, I offer as an example a
streamlined workflow for tackling a big,
document-intensive case. This workflow
was developed defending fraud cases
in federal court. It should still apply in
broad strokes to civil litigation, though
it does not reflect civil rules dealing
specifically with proportionality, ESI
production, and the like.
Assess the scope of the case. The goal
at this stage is to estimate how much discovery will be involved, and in what form.
Meet and confer with opposing counsel
to address discovery issues. If you have
co-defense counsel, meet to discuss sharing discovery database costs, and pooling information and resources during
Assemble a team. After estimating the
work the case will require, the next step
is ensuring you have enough hands to
meet that need. If not already on staff,
consider hiring or contracting additional
attorneys, paralegals, investigators, or
experts — especially technology experts
— as required by the case.
Select a database. Litigation database
services are not one-size-fits-all. It’s a
competitive and constantly changing industry; vendors offer up an ever-chang-ing spread of technical support services,
review platforms, and search tools. Consider security features, accommodations
for collaborating with co-counsel and experts, ease of use, and technical support.
Also consider whether to use an online
or a locally hosted database. In general,
online discovery databases better facilitate collaborative discovery review, offer more powerful review tools, and host
more data than desktop programs.
Receiving discovery. Quality-con-
trol check discovery as you receive
it. Make sure scanned documents are
properly unitized (i.e., all pages are cor-
rectly grouped together) and computer-
searchable. Perform optical character
recognition (OCR) as necessary to make
documents searchable. Scan and OCR
physical documents. Remember to main-
tain a discovery log and share discovery
with your client.
Determine what data to process and
host. You don’t necessarily need to put
all received discovery onto the database
— especially as this will drive up the cost
of hosting. If discovery includes forensic
images of hard drives, there may be irrelevant or duplicate data the database
vendor can programmatically exclude
through de-duping (removing duplicate
files) and de-nisting2 (removing operat-ing-system files, program files, and other
data not created by a computer’s user).
You can work with the vendor to further
reduce data volume by eliminating file
types or date ranges that are unlikely to
prove irrelevant — you (probably) don’t
need to load anyone’s iTunes library or
You Tube collection.
Configure the database. Begin by organizing the discovery database to aid
issue-based searching. Most often this
will mean asking the vendor to load data
by custodian, having your review team
run searches on these custodian-based
folders to identify documents relevant
to specific issues, then adding those relevant documents to issue-based collections. Database features such as predic-tive coding — think Netflix suggestions
for discovery — can also help you identify
Work with the discovery. Conduct a
team review of the discovery to investigate likely issues — and uncover new
ones. For collaboration with co-counsel
and experts, use public and private fields
to control what work you share. Meet
regularly to keep preparation coordinated and your hand on the rudder. Issues
Eureka! A responsive document!
“It used to be the size of your law library was a
measure of how attractive you were to clients.
Now I’ve got more resources on my phone than
the biggest firms . . .”