There has been a lot of consternation in the legal blogosphere lately about the cost of production in e-discovery, including here, here, and here. Most of the attention is focused on improving the review process in order to limit the scope of production. But there is another, rarely discussed point at which the whole discovery model breaks down- the actual delivery of data to opposing counsel.
The Sedona Conference has published guidelines for making production more effective, but that guidance is primarily focused on the form of production- paper, PDF, TIFF, or native formats. This is a useful discussion to have, since a lot of needless cost and complexity comes from the stubborn insistence of many parties on producing in image or paper. But what is not often addressed is the seemingly obvious and important question of how to transfer data to opposing counsel. It is absurd that, despite all of the advances in communications and storage technology, the production process often involves the producing party putting data onto a disk and physically sending it to the other party. Not only is this process inefficient and insecure, but hopelessly archaic.
The Internet has revolutionized the way that we share and exchange information, but e-discovery attorneys are stuck with familiar old habits when it comes to production. Nextpoint believes that digital records are best kept in native, digital formats, and should be converted or processed as little as possible. This is a conversation we think more attorneys should be having, and you can look for some exciting news from Nextpoint in coming weeks that will shatter the old production paradigm.