Without question, social media is a daily component of the lives of the majority of Americans. According to recent studies, the average Facebook user creates ninety pieces of content per month. A billion tweets are posted on Twitter every 48 hours, and more than 70 million photos and videos are shared on Instagram each day. Statistics indicate that there are currently approximately 209 million social media users in the United States alone, with that number expected to grow to about 221 million by 2022 (1). Without question, this usage will only continue to increase over time.
Growing Use of Social Discovery Evidence in Both Large and Small Cases
Though the majority of people in America now use social media, attorneys are, in many ways, uniquely affected by the rise of the digital age. As the use of social media continues to increase, the amount of valuable evidence generated from that content increases as well. Unfortunately, however, many still have a tendency to view eDiscovery as having relevance only to large case, federal forum matters. In fact, that couldn’t be further from the truth.
There has recently been a noticeable increase in e-discovery activity for smaller, local cases. This is no wonder, in light of the fact that 90% of all documents created today are generated in an electronic format, and considering the fact that social media usage of all kinds only continues to increase (2). Almost all states have recognized this reality, with 49 of 50 having now adopted their own eDiscovery rules, which apply to all cases, not just large ones (3). These rules require all civil litigants to comply with the established legal standards for the retention and management of electronically stored information (ESI). This is not to mention that the majority of states have included technical competence as a component of their ethical requirements for attorneys, with the total number of states having done so now at 32 (4).
Certainly, courts have seen an enormous increase in the amount of digital evidence used in criminal cases, with the Department of Justice and Administrative Office Joint Working Group on Electronic Technology (JETWG) going so far as to develop a recommended ESI protocol for use in federal criminal cases. Since that time, digital evidence and eDiscovery practices have been of increasing importance in criminal cases across the country, as indicated by the increasing number of published rulings relying upon that evidence and addressing its admissibility.
As case law indicates, however, the use of digital evidence is not limited to large scale federal forum cases, or to criminal matters. Indeed, there has been a noticeable increase in e-discovery for practitioners of all sorts of civil cases – cases that are large scale, multi-million dollar lawsuits, but also cases that are smaller in scale and scope. In fact, as most attorneys realize, the vast majority of cases that are litigated are not multi-million dollar conflicts between large corporations, nor are they class action suits including thousands of plaintiffs. The vast majority of cases practiced in the United States today are smaller scale cases, but they are cases in which the evidence is also digital, and in which it is no less important. In these sorts of cases, clients don’t have many thousands of dollars to spend on eDiscovery. Those clients need affordable, user-friendly tools designed to preserve Metadata, collect evidence effectively, and organize it into a format that is easily accessible, readily authenticated, and cost-efficient. Up until recently, the problem with smaller firms or solo practitioners being able to do this has been two-fold: First, eDiscovery technology isn’t typically designed for small data sets, and second, market pricing is out of reach of many smaller firms.
eDiscovery Technology Designed for Larger Data Sets
One major problem that those with smaller cases face is that many of the current technologies developed for larger cases with larger sets of data. Large litigation support services with corresponding revenue streams able to process or host terabytes of data are often unable to easily adapt to smaller projects that may consist of 100 gigabytes or less. Products specifically designed to work with immense data collections often cannot be easily scaled down to handle smaller sets of information, as they require a specific hardware and software infrastructure to operate. Often, these large scale data processors have corresponding large-scale pricing, which are beyond the scope of smaller firms and smaller case budgets.
Market Pricing for eDiscovery
In addition to finding a data collection service that is tailored to smaller sets of information, smaller firms and solo practitioners are often simply deterred from seeking eDiscovery services because of the current market pricing. Many eDiscovery vendors still base their pricing in the per unit commodity pricing era of photocopying and imaging. The standard practice in the industry for many years has been to charge hundreds of dollars per gigabyte each time data is handled.
This pricing structure has been the norm since the early 2000’s, and under that structure, each step of the electronic discovery process is handled separately by different products, for which clients pay separately. Under that structure, clients are paying separately for processing, for duplicate detection, per Bates number, per gigabyte for hosting, and more. Unit pricing for each of those services can vary widely, but ultimately results in a very high price tag when all is said and done. Considering the typical 800 gigabyte hard drive on a typical computer, it’s possible that a forensically sound collection of data might eventually yield as much as 200 gigabytes of reviewable material. Under the current pricing structures of many large scale data collection companies, a price tag for this amount of data might cost as much as $350,000 for a case that was litigated for eighteen months.
While these astronomical prices are dropping somewhat, they are still far from the ideal budget of smaller firms, solo practitioners, and their clients. Unfortunately, many of the largest eDiscovery vendors are uninterested in dropping their prices to a level compatible with the budgetary needs of smaller practices. Large vendors have a larger overhead, and accordingly, need larger revenue amounts to support that infrastructure. These larger-scale infrastructure needs reinforce the systems of high fixed monthly costs, and prevent these services from truly being accessible to smaller scale litigants.
What is the Solution?
The inaccessible pricing of many larger-scale eDiscovery vendors is unfortunate for smaller firm and solo practitioners, to whom the rules of evidence, eDiscovery, and technological competency still apply. The risks that litigants face because of improper management of ESI can include findings of Spoliation of evidence, sanctions, lower damage awards, adverse jury instructions and even complaints filed with state bar associations. Attorneys and their clients should not have to face these issues simply because of the unavailability and high cost of specialized software to process and review electronic evidence. While many assume that small cases require different tools to manage eDiscovery, the fact of the matter is that smaller cases simply have smaller technology and discovery budgets.
If you are a practicing attorney who handles large scale, multi-million dollar cases often, then you may indeed have a complete array of litigation support tools to use, even for your smaller cases. If you don’t often handle large cases of that nature, however, and prefer to practice on a smaller scale, a smaller budget doesn’t have to mean that you can’t obtain the tools necessary to handle your eDiscovery as you’d like to. Though the case may be on a smaller scale, that doesn’t make it any less meaningful to the client, or to the attorney trying to ably represent that client. That’s where WebPreserver comes in.
Webpreserver offers the features that all attorneys need - in an easy do-it-yourself format that anyone can use, at an extremely affordable price compared to outsourcing. While Webpreserver can easily be used on smaller scale cases, it can also be used for large lawsuits with voluminous documents. Whether you’re a global law firm, a small firm, or a solo practitioner, our user adoption is smooth, and our learning curve is almost non-existent. Our evidence is easily authenticated, and comes with a 256-bit Digital signature and time stamps on the captured files using a certified Stratum-1 atomic clock in compliance with the eSign act. Webpreserver allows users to execute fully automated preservations with a variety of forensically sound export formats to support your workflow. Once your team adopts the plugin, they will never want to go back!
At Webpreserver, we know that properly collected and authenticated evidence is critical to the successful resolution of cases on behalf of your clients, and we want to continue to provide the most cutting edge, high quality social discovery collection service on the market at a cost that’s affordable. Ultimately, it is the process that one chooses to conduct eDiscovery that results in effective, efficient collection of data that is easily authenticated and useful in cases of all types, on all scales. The low-cost, multi-feature pricing structures offered by WebPreserver are exactly the type of solution that many attorneys need. Call us today to see how we can help you to help your clients!