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There’s a fairly common theme to those who dislike electronic discovery: It’s too expensive and just ramps up the cost of litigation.
I do understand that costs of discovery are more upfront now, but I would argue that the “enormous costs” of discovery are because lawyers still aren’t doing it right. What you aren’t seeing is that the process you need to use has changed, and the costs you see are just upfront versus further down the line in a case.
Let’s go back ten years and talk about process. Before ESI, did we call discovery “paper discovery”? No, we didn’t. But we asked for it, and we got it. We didn’t have to discuss scope and complex issues the way e-discovery forces us to do.
We asked for paper from our clients and the other side, and we got bankers’ boxes of stuff. Then we sat down and went through each page one by one, and then we went through them again. And again. We used yellow stickies with handwritten notes. Then we graduated to the multi-colored Post-it tabs and hoped we could remember what color stood for what. My brain hurts just thinking back to the hours of my life lost in conference rooms sifting through boxes.
Then we moved into Summation and paid people to manually code multiple fields of documents (that we reviewed by hand) so that we had a database that told us about the documents in it. That had limited functionality, but it was better than Post-its.
Now we’ve moved to better-functioning technology that lets us pull in the documents and auto-creates a database for us of all the fields of metadata — not just the ones we choose to code. And you have to pay, usually per GB, to pull that data in and create a database. It’s called a processing charge. And that is your biggest upfront expense in e-discovery.
But, oh, the things you can learn from a good database of documents with today’s tools. Exponentially more than you ever could before — and you can do much more work in less time. With one review, you can create deposition notebooks, code documents with issue codes, identify privilege, see where search terms are mis-hits to be culled out, identify relationships between people, understand what terms to search for, and get a bird’s-eye view of a case in just a few hours. We are even starting to use AI to identify documents. Could you do that with paper? I thought not.
So we’ve gone from no database with paper to a manually coded database to technology doing all of the work for us. Those costs are really not that different. What is different? The volumes of data.
Have you caught on yet? You control the cost by controlling the volume. Controlling the volume requires strategy and planning. Now strategy and planning include understanding the technology to ask the right questions, and — you’re not going to like this one — cooperating with opposing counsel. (Also, leveraging the gift of proportionality, which we’ll talk about in a future column.) These two things are hard for lawyers; we are not trained in either area.
Most of you are still conducting discovery as if we still have paper. That’s a big part of why discovery of ESI costs so much and you don’t want to do it. Stop doing that. Instead, start with the endgame in mind: What do you want, where can you get it from, and how valuable is it versus how much does it cost to get?
With paper, we asked for everything because our universe was limited. With ESI, our universe is vast and unmanageable. You have to make reasonable decisions about what to preserve, collect, and produce AND what to ask for so you don’t end up buried.
Data does not equal discovery. Discovery is still strategy — it’s still finding the facts you need. But the game has changed. E-discovery is a thing because we now have a new complex layer associated with gathering information in discovery — it’s scattered across sources that store electronic information, and every day there are new sources to understand.
The lawyers who start learning the technology that their clients use and who are figuring out ways to make litigation affordable are the ones who will be around in ten years. Because the volumes of ESI and the sources you have to search are only going to increase drastically, and your litigation budgets are not.
Start now. Figure out ways to proactively address the cost issue for your clients and be sure to TELL them how you are doing it. They don’t know if you don’t tell them.
Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and she does so regularly for her clients. You can reach her at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.