Executive Summary
With the explosion of data in the last few years, suppliers need to think about creative new ways to preserve, collect, and review data for litigation. Ninety percent of all data in the world was created in the past two years, per IBM Analytics. For about $90, you can purchase a two Terabyte hard drive, which holds 2,048 Gigabytes. One Gigabyte can contain any number of pages of text (depending on the file types), but one Gigabyte will typically hold the equivalent of 20,000 to 700,000 printed pages of text. Assuming that one Gigabyte holds about 100,000 printed pages of text (a conservative estimate), this $90 hard drive can easily hold 204,800,000 pages of text.
Assume that a lawyer can review one page a minute — a brisk pace. It will take this lawyer 20 years of daily eight-hour days (including weekends) to review! This is the root of the problem litigants face in the discovery process — dealing with volume. Old methods of handling discovery no longer work when handling electronic discovery, because those old methods are no longer cost efficient.
1. PRESERVATION
The preservation of electronically stored information is the first part of the challenge. A litigant typically has a duty to implement a litigation hold to preserve information related to the litigation, and failure to preserve information once this duty has triggered can lead to a variety of sanctions against counsel and client. It can be challenging to identify what needs preserving, and to take the necessary steps to preserve quickly, when a typical employee will have multiple computers, smartphones, email accounts, and more.
2. NEEDLES IN HAYSTACKS
Search is the next challenge — but there is a growing acceptance of technology-assisted review (TAR). TAR is a process by which lawyers can essentially create the equivalent of a spam filter for relevance or privilege tailored to a specific case. This acts as a forcemultiplier where the judgment of a senior attorney can be extrapolated to a large document set using TAR technology. TAR isn't necessarily easy, and it doesn't work well in every case. Cases with lots of graphics, audio, or video do not jive well with the technology. Plus, given the effort it takes to get it right, human eyes may be cheaper in small-document cases. But TAR is the evolving norm on large-document cases.
3. PRODUCTION
Production of large volumes of electronically stored information can also cause issues related to privilege. When producing millions of emails, it is common for a potentially privileged document to be inadvertently produced. Clawback orders are an effective tool to protect against such waiver, and a clawback order is a privilege-waiver prophylactic. Federal Rule of Evidence 502(d) gives a federal court the power to enter a clawback order that protects privilege in the result of inadvertent waiver, and as the advisory committee notes to 502(d) indicate, the parties do not even have to agree on the clawback order for the court to enter it. The Federal Rules advisory committee also correctly pointed out that such orders "are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery[.]"
Suppliers need their lawyers to utilize the newest technology for handling their Big Data litigation while at the same time still getting great results in the litigation.
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