Early Decisions Made in the Discovery Process

Updated: Jul 9, 2019

Discovery in litigation has become incredibly complex and burdensome due to the digital age. If it is your first time managing a discovery project, you will most likely be faced with Electronically Stored Information (ESI). There are early decisions that can have huge impacts down the road which you do not want surfacing at the last minute with a quickly approaching production deadline!

Below is a list of decision you will be faced with that can have big impacts down the road.

Native versus image review

You will almost certainly be producing documents in some type of image format during discovery (TIFFs and PDFs are most popular). Naturally, you may think it is logical to convert the ESI to image upfront, before you start your review. This may be a good idea if you plan to produce all documents minus documents that are protected by attorney-client privilege. However, if you plan to review for the purpose of limiting your production, it is best to review documents in their native format which new litigation technology allows you to do. Vendors charge a pretty penny for image conversion, so only pay to convert the documents you will be producing to images. This can lead to substantial costs savings.

Black & white images versus color images

Your ESI stipulation will address the format in which both sides plan to produce documents. Color images typically hold a higher fee than black & white images, so it may be wise to agree on black & white images early. If you are using a vendor, check with them during the negotiation of your ESI stipulation to reference their fees for producing in both formats. This can lead to a significant savings in your production costs.

Production format of certain file types

Also within your ESI stipulation, there will be a section addressing the production format of certain file types. While producing images for things like MS word docs and email is a good solution, other file types may not work well for imaging. Examples are excels and video files. Make sure to address these file types early so you do not end up paying to image thousands or hundreds of thousands of excel pages, which can be a common result during conversion. Imaged placeholders are a good solution for these file types.

Scope of collection

Early decisions around collection can be key in an important litigation. It is typically an easy place to ‘skimp’ on the bill since there is always a chance for settlement in the future. If you review all discovery related expenses, collection is actually the smallest relative to its importance. It may be best to pay the money to (over) collect data since it does not cost much more to collect 1 more custodian. You also want to avoid paying for another collection in the future because you chose not to collect a custodian.

OLE embedded objects

OLE embedded objects are files that you may find in another file (think an excel document within a powerpoint deck). One decision you will need to make during processing is whether you want to ‘extract’ those to make them their own document or keep them within the file. Extracting OLE embedded objects can increase the document count substantially which will lead to more attorney review time. Your decision will depend on the case, but keep in mind the impact on deciding to extract these files.

Search terms you select

A popular way to ‘cull’ documents during processing is to apply search terms. Selecting search terms can be crucial since many have different impacts on how many documents they eliminate. There are new products in legal technology that allow you to ‘test’ search terms. If one ‘noisy’ term is too general and hitting on 80% of the documents, you may decide to eliminate it or make it more specific. Your goal is to find terms that get you to the responsive documents the quickest.


Discovery is a complex process and it is better to take your time with making decisions than to move as quickly as possible. There are many decisions you make that can have big impacts, so make sure to consult with your e-discovery vendor or colleagues to make sure you are making good decisions. If you have any questions, please feel free to reach out!

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