In commercial litigation, the client's business records are
often a major source of evidence. Today, most business records are
electronic rather than paper, and have enormous efficiency
advantages over paper.
Electronic documents can be searched and sorted. They can be
filtered by date, keyword and type. Duplicates can be removed
automatically. The cost of copying is minimal and every copy is a
perfect copy. They can be transported at almost no cost, occupy
virtually no space and consume far fewer resources than hardcopies.
They can be reviewed electronically, eliminating the need for a
paper-filled war room. The cost of handling and using electronic
documents is a fraction of the cost for an equivalent volume of
But many litigators negate many of these inherent advantages by
turning the client's highly-efficient electronic business records
into paper documents for the purpose of conducting the
However, the practice of printing and producing hardcopy
versions of existing electronic documents is drawing to a close.
The Federal Rules of Civil Procedure were amended in 2006 to
specify the forms in which electronic information may be produced.
Unless otherwise required or agreed, the producing party has two
options: either to produce the files in the forms in which they are
ordinarily maintained, or else to produce them in other reasonably
usable forms (see Rule 34(E)(ii)). Many state courts are adopting
As a practical matter, this usually means that the producing
party will either produce electronic files in their original native
formats (as Word documents, as Excel spreadsheets, as e-mail files,
etc.) or else convert them to an industry-standard electronic
production format that includes a TIFF image of each document, the
searchable text extracted from each document, and certain fielded
data (like e-mail header fields) extracted from each document. The
first option constitutes the form in which the files were
"originally maintained," and the second constitutes another
"reasonably usable" form. The second option is usually a better
choice, as it allows endorsement with confidentiality legends and
control numbers, eliminates the risk of inadvertent alteration and
spoliation, and obviates the need for the receiving party to obtain
licenses for all the applications that created the original
Where does this leave the old paper option? Can a litigator
still get away with printing the client's electronic documents to
make a traditional hardcopy production? Some attorneys still do so
in small cases. But it is increasingly likely that the receiving
party will object and the court will frown on the attempt. This is
especially true in larger cases when the efficiencies of electronic
documents are necessary to make effective use of them. Paper simply
is not a "reasonably usable" substitute for fast, searchable,
portable electronic documents.
So the process of civil discovery - collecting, reviewing and
producing the client's documents - will become increasingly
electronic. But many litigators remain concerned that the cost of
electronic discovery will be higher than the cost of the paper
discovery that it replaces.
In fact, however, the opposite is true. Electronic discovery is
vastly less expensive than the equivalent volume of traditional
paper discovery. Further, it is the attorney - not the technician -
who controls the scope and cost of an e-discovery project. The
issue is simply one of recognizing the parallels between
e-discovery and traditional paper discovery to see how the
attorney's judgment controls the scope and cost.
The experienced attorney knows that the cost of discovery should
not be disproportionate to the value of the dispute. A
hundred-thousand-dollar claim cannot justify a million-dollar
document production. In the realm of paper discovery, if the scope
of a document request is too broad, the litigator will confidently
object based on the traditional grounds of undue burden and
excessive cost. Even though all of the requested documents might be
technically relevant, the litigator will argue that discovery
should be limited to the materials that are most likely to be
pertinent based on rational criteria.
But when electronic documents are involved, even the experienced
litigator may be unsure of how to address scope and cost without
running the risk of error and sanctions. This is not due to any
failing on the part of the attorney. It is because electronic
document repositories tend to be much larger and more complex than
traditional paper repositories, and because electronic documents
are so easily altered and deleted.
Fortunately, the principles of cost-effective discovery are
equally applicable in the electronic world. In any discovery
project, the most expensive element is usually the cost of attorney
review time. The cost of discovery is therefore controlled
primarily by controlling the size of the pool of documents to be
reviewed. The size of that pool can be broadened or narrowed based
on criteria such as which custodians and repositories to include,
the date range of the documents to be included, and the keywords to
be used for filtering.
If these criteria result in a pool of documents that is too
large and expensive to review in the context of the dispute, then
the attorney will narrow the criteria, just as has always been done
in traditional paper discovery. This could mean reducing the number
of custodians and repositories, reducing the date range, and
tightening the keyword list. The attorney has the ability to adjust
those criteria to create a review set that is cost-appropriate in
light of the amount in controversy. In short, the attorney controls
the size of the review set and thereby controls the cost of
However, the attorney must also be sure to protect the client
against the risk of sanctions by taking steps to ensure that the
criteria are acceptable, that evidence is not lost and that the
scope can be broadened if necessary.
The attorney avoids the risk of spoliation by preserving
everything that is potentially responsive (even if of limited
importance), since preservation by itself is much cheaper than
processing and review. In short: the attorney should preserve
broader than what is selected for review.
The attorney avoids the risk of disputes regarding scope by
disclosing to opposing counsel the criteria that will
be used to create the limited subset that will be reviewed for
production. Preservation plus disclosure is the attorney's
If, after such disclosure, there is a disagreement about the
scope of what will be reviewed, the parties can resolve it by
negotiation or by motion before the cost of review is incurred. If
the scope turns out to be too narrow, the attorney can broaden it
accordingly, since the larger universe has already been preserved.
Finally, if subsequent review of the initial production set reveals
that the criteria were too narrow, the production can be
supplemented incrementally from the universe of preserved materials
to the extent appropriate.
The element of disclosure ensures that both parties are aware of
the initial limitations on the scope of what will be reviewed for
production. The parties typically agree to start with a core list
of key custodians and a focused set of criteria that are closely
correlated with relevance (names of key participants, related
company names, product names, project names, patent numbers, etc.).
The parties agree that they can make follow-up requests after they
have had a chance to review the results of the first
Here is a roadmap of the approach:
First, preserve the broader pool of what is potentially relevant
(even if of low importance) because preservation is relatively
cheap. For example, in the context of a company's mail server, you
can save a full backup of the entire mail server at very low cost,
even though you only expect a small number of mailboxes to be
relevant to the dispute.
Second, within that broader pool of preserved materials,
identify the subsets most likely to yield the evidence that
matters. This is typically based on identifying the custodians
involved in the dispute and the repositories associated with those
custodians (their mailboxes, their home directories, the group
directories to which they had access, etc.).
Third, for those subsets, develop rational culling criteria that
are expected to reduce the volume to a practical amount and also to
be well correlated with relevance. Culling typically includes
removal of duplicates, filtering by the appropriate date range,
filtering by keywords, filtering by file types, etc.
Fourth, disclose to the opposing party the custodians,
repositories and proposed culling criteria to be used as the basis
for creating the initial review set for the first production.
Fifth, negotiate with the opposing party to refine and finalize
those criteria. Agree that after the first production has
been made, the parties may make reasonable supplemental requests
based on what they learn from the first production. This can
include identifying additional custodians, additional search terms,
Finally, since the larger pool of potentially relevant materials
has been preserved, you can always go back to get just the
additional materials you need, and the supplemental production
requires only the incremental addition of those additional
custodians, repositories or keywords.
With this approach, the attorneys can remain in control of the
size of the review set and the overall cost of discovery.
James Berriman is CEO of Evidox Corp., a
provider of e-discovery and litigation-support services. Berriman
has been developing and using litigation technology systems since
1982. Before co-founding Evidox in 2006, he was senior counsel and
director of litigation technology at Goodwin Procter LLP.