Reducing eDiscovery Costs
Two Solutions That Can Help Meet The Challenge
Although it has produced a sea change in the practice of litigation, electronic discovery has also contributed to rising costs due to the massive amount of data that people and organizations generate every day—voluntarily or otherwise.
Hiring document review attorneys to pore over thousands (or millions) of emails or comb through reams of electronically stored information is often cost-prohibitive, even for large firms and corporations. Electronic discovery is one of the most costly aspects of litigation, with a typical medium-sized lawsuit costing parties between $2.5 million and $3.5 million.
In the past few years, the sheer volume of written and digital communications has drastically increased. In a digital world where we are connected at home, on the job, and on the road, more and more data from a variety of sources can shed light on a defendant’s activities and serve as evidence in a trial. But the jump in volume and types of data also presents unprecedented challenges—and expense—for attorneys and the organizations that house such data.
There is business and regulatory pressure to mitigate these expenditures. In addition to internal budget considerations, law firms and in-house legal departments must follow government mandates, such as the 2015 Federal Rules of Civil Procedure, to reduce discovery time and costs while reaching just resolution of cases. While mishandling and inefficiencies can lead to higher costs, penalties, and lost revenue, narrowing discovery requests to relevant data can reduce costs and time spent.
When organizations begin to proactively shift their record management systems to an information governance framework and leverage technology tools such as technology-assisted review (TAR), they will get closer to solving the cost problem.
What's Driving High Costs
The main factor driving up costs in e-discovery is the document review phase, which accounts for more than half of expenses. The RAND Institute for Civil Justice determined that the review phase accounts for about 73 percent of e-discovery costs. During this phase, electronic documents are evaluated to determine if they are responsive, privileged, or confidential.
“Part of what makes e-discovery so expensive is the volume of information,” says Maura Grossman, principal at Maura Grossman Law and computer science professor at the University of Waterloo in Ontario. Grossman has written extensively on e-discovery and the use of technology-assisted review processes to manage discovery costs.
Shifting Corporate and Information Governance
Managing e-discovery costs doesn’t only lie in harnessing the volume of digital data that’s now a key consideration in litigation. It’s also an issue of assessing and refining corporate and legal governance—how law firms and corporations approach the process of managing that data; their strategies for organizing, processing, and storing information; and how they factor cost considerations into the equation.
E-discovery costs can escalate with duplicate and unknown repositories; a lack of system integration, executive oversight, and legal hold process; and inconsistently named and structured data. In response, costs can be lowered by implementing sophisticated information governance systems, moving data to the cloud, and maintaining appropriate retention schedules and litigation holds.
Tech Solutions and Accountability
In response to cost considerations and the increasing volume of data under their purview, more corporations are demanding accountability from attorneys, vendors, and data management teams — analyzing cost, timelines, and outcomes. They are also managing e-discovery processes in-house to save costs. As a result, diverse vendor solutions continue to pop up and address this ongoing need and help legal departments predict and manage the costs of document review.
To that end, systems such as technology-assisted review (TAR) have refined the process of e-discovery and made it quicker and more cost-effective. TAR facilitates collaboration between human reviewers and computers to select appropriate documents.
As digital technologies continue to evolve and facilitate a greater number of daily tasks in our personal and professional lives, the amount of electronic data to be sorted in discovery will only increase. To get a handle on the mounting costs of e-discovery and begin to reduce expenditures while remaining compliant, litigators and their support staff are advised to shift to an information governance framework and embrace technological solutions that automate the process, increase accuracy and speed, and reduce labor costs.
This whitepaper is not intended to provide any legal advice.