Book Review: “Electronic Discovery for Small Cases” (ABA 2012)

Mock Rule 26(f) Conference of Parties Posted Online
August 7, 2011
Taxation of E-Discovery Costs Under 28 U.S.C. Sec. 1920(4) after Taniguchi v. Kan Pacific Saipan
August 14, 2012

Bruce Olson and Tom O’Connor, “Electronic Discovery for Small Cases” (ABA 2012), addresses one of the most important topics in the ESI field, proportionality, in an elegant, clear, and concise manner. Its chief virtue is that, instead of listing a parade of horribles and describing multi-million dollar sanctions awards, it provides low-cost solutions for run-of-the-mine cases.

Messrs. Olson and O’Connor take on one of the most problematical issues presented by ESI – – cost control.  Setting the stage, the authors note the complexity of service provider pricing and write:  “Very few people have the experience, let alone the patience, to sort through those sheets.”  Id. at 17.  I have similarly noted that “ESI pricing can be trickier than the Rule Against Perpetuities.”  M. Berman, “Tips to Avoid Mistakes with ESI Vendors” (ABA Tech. for the Litigator 2009).

Messrs. Olson and O’Connor provide a step-by-step road map to circumnavigate that maze.  The book selects representative software solutions, acknowledging that there are many equally-excellent programs that cannot be mentioned, and describes them in detail, including price, options, advantages, and disadvantages.  While not criticizing expensive solutions for high-dollar cases, the authors focus on the small case and the “tweener,” and point out that “you cannot expect a 747 jumbo jet to be used as an effective or cost-efficient means of transporting commuters during rush-hour traffic.” Id. at 18.

The book describes programs like SafeCopy2 ($161.25 for an individual license) and Harvester Portable ($1,495.00) as low-cost collection tools.  When a client or opponent provides a “mixed bag” of multiple types of ESI, the authors recommend Quick View Plus Standard Edition ($49.00) as a viewer.  They suggest the use of dtSearch Desktop ($199.00) as a “robust tool for processing, searching, and viewing a mixed collection of raw files and e-mail files,” concluding it is “ideal for use with small collections.” Id. at 41.  For in-house processing, the book suggests Digital WarRoom Pro ($895.00).  After describing somewhat pricier litigation review platforms, the authors describe several cloud-based options.  There is also a chapter on managing email with Adobe Acrobat portfolios.  The book closes with a discussion of trial presentation options.

While it is neither the first nor the only publication on this topic, see e.g., S. Nelson and J. Simek, “Electronic Discovery in Everyday Cases: Practical Guidance is an Antidote to Fear!,” (2007); D. Jaar, “E-discovery Tips for Everyday Cases” (ABA 2009); C. Jacoby, “E-Discovery in the $50,000 Case” ( 2009),“Electronic Discovery for Small Cases” fills a void and is certainly, at a minimum, among the best.  It presents a “how to” or “do-it-yourself” guide to handling the smaller cases.  The authors note: “Although those cases might be small to an international corporate service provider,”  “they mean everything to the person involved in the lawsuit and the lawyers who represent them.” Id. at 18.

Messrs. Olson and O’Connor demonstrate how to avoid shooting a mouse with an elephant gun or fighting a dragon with a cardboard sword.  See M. Berman, C. Barton, P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 354, quoting Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir.), cert. denied, 498 U.S. 81 (1990).