Monday, October 19, 2009

Controlling Discovery Costs ... "What's in your toolbox?"

Lately the rants have focused on "Why does ediscovery cost so much?...", now I feel compelled to divulge how to get cost back in line with reality.

This week Corporate Counsel from around the world will gather in Boston at the ACC Annual Meeting (10/18 – 21) to discuss trends related to “bringing control back in-house to the GC” by managing cost associated with outside counsel and the cost of discovery (specifically ediscovery). There are expected to be 3000 plus attendees over the course of the week and industry technology providers will be lining the convention halls and hotel lobby’s ready to throw the kitchen sink at passer-by’s.

Technology to run an in-house collection, review and production is widely available throughout the litigation support community. New offerings are released daily and no stamp of approval is required. Purchase at your own risk. The majority of older proven technology (more than 3yrs on the market) have moved away from the per unit pricing model to subscription based pricing models. Newer trendy technology is offered with the per unit model or a restricted subscription model.

It is a fact that using
Early Case Assessment (ECA) technology will reduce the overall cost of discovery and the litigation lifecycle. The reduced cost is directly related to lowering the amount of data for review by outside counsel. The expense of discovery is typically front loaded in the sense that identification of data for review continues to be based on the total uncompressed size of ESI collected at the onset of discovery. This is typically charged by the Gigabyte. Ironically most if not all ECA software providers and vendors know beforehand that over 60% of the ESI collected will be non-relevant to the Request for Discovery or just junk.

A classic vendor tag line "Your Partner in Success"....

often Corporate Counsel are targeted by legal technology providers with the following ROI premise as their position is simple to relate; Reduce and manage your cost to identify potentially responsive data using Early Case Assessment platforms … additionally the cost associated for outside counsel review is more predictable.

How many Corporations are attracted by this premise? Check out
Fulbright’s 6th Annual Litigation Trends Survey Report .

Allow experience to guide one in making such decisions. Not every corporation is ready to assume the risk of internally managing the collection and first pass review with regards to a discovery request. The pure sophistication of technology gives the impression that clicking a few buttons is all it takes to have a defensible process; then pass it on to the outside counsel. Experience knows better. Experience knows that knowledgeable professionals provide consistent levels of confidence for representation. Transparency in each action is required by the courts to protect from claims of spoliation and/or inadequate productions.

Mitigation of Risk

Corporations must ask “What makes sense?”. Developing a consistent Team of Professionals with a structured process utilizing technology as necessary provides the framework for how discovery requests are handled. In addition, General Counsel will benefit from the stability of consistent defensible practices in valuating each matter in a predictive model.

The Predictive Ediscovery Toolbox:

  • SaaS (Software-as-a-Service): Secure Virtual Instance in a Private Cloud pre-loaded with Early Case Assessment Tools.
  • On-demand access: Manage and review collected ESI via a computer, an Internet connection and a web browser.
  • Analysis and Culling Tools: NIST, De-duplication, Custodian Segregation, Proximity Filters, ESI Reports and more.
  • Online Collaboration: Internet Web Based Meetings for meet & confer with Custodian for Targeted Data Review.
  • Search and Data Sampling: identify (tag) potentially responsive ESI by term, word counts, doc counts, keyword suggestions, entity extraction and other progressive text analytics.
  • Scalability: Seamlessly transition from Early Case Assessment to Linear Hosted Review platform.
  • Minimal investment: Virtual Instance does not require costly hardware or software installations.

Several innovative Litigation Support providers offer a predictive solution for managing the cost related to discovery. Check what's under their hood for technology offerings and experience in providing quality documented service throughout the entire litigation lifecycle. Refrain from getting caught in the “button pusher” hype of a products ease of use claim.

inspire. innovate. implement.

The above content is solely the expression of the author and does not represent any entity by which the author is contracted or employed. Content is based purely on experience and common sense approach to providing solutions beyond service to the reader of the content. Author’s expressions are presented to inspire innovation through implementation.