It’s been nine months since my Review less data, and review it faster post -- a lifetime in the e-discovery universe -- so I thought it time to brush off the dust and revisit the post's underlying principles.
First, let me note that I think in-house decision-makers have become more informed consumers of all things e-discovery since that post (and others) was written. More people understand the basic concepts around reducing legal costs and more people know the right questions to ask. So while I agree with much of what what was written on the '3 Geeks' blog regarding the question “if clients are smarter now,” I believe that the overall knowledge level within the in-house community has increased.
That being said, I have been involved in several discussions with potential clients recently and when I ask questions on how they currently handle the e-discovery portions of their cases, it has often been apparent that a key component to reducing costs has been overlooked (or at least has not been the focus of cost-reduction efforts). It is still common to hear of strategies focused on the hourly rate of the attorney reviewer. While the cost savings from a law firm attorney to contract attorney are certainly substantial and save big dollars, the cost savings of a contract attorney versus another contract attorney is not significant in the overall cost of litigation. In fact, it is not uncommon to see the lowest-cost provider produce a result that’s higher in total costs due to the layers of review required to ensure a consistent work product.
A real opportunity to save major dollars in e-discovery is through an effective early case assessment (ECA) strategy. This requires implementing a repeatable and defensible process that is targeted toward finding relevant information and safely eliminating non-relevant information. Through advanced ECA technologies, one can filter out clearly non-relevant email domains from a review, limit the universe of reviewable documents by date parameters, and most importantly apply AND TEST well-crafted key term searches to the collected data. The importance of comprehensive and effective key term searches cannot be overstated. Done correctly, it can consistently reduce the amount of data to review by 85% or more.
Well-crafted key term searches are not a one-time task. Rather, effective (and defensible) key term development requires application of key terms, sampling of the results of those key terms, and expansion and narrowing of the search terms. It is critical to properly document every step of this process so that you can demonstrate the good faith efforts in targeting relevant information and eliminating clearly non-relevant information.
A little bit of Early Case Assessment can go a long way. This became apparent in one of our year-end reviews with a client in which we compared 2009 to 2008 numbers. It did not surprise me at all that we handled twice as much data for the client in 2009 versus 2008. The client simply had more litigation in 2009. What popped off the page was that despite this significant bump in volume, we reduced costs by almost 60%. That’s mainly because we implemented an early case assessment protocol for all the client’s matters, which not only reduced the number of hours our attorneys spent reviewing documents, but sliced the client’s overall technology/review software expenses as well, saving millions of dollars over previous years’ expenditures.
So while application of key terms prior to review may not always be possible in a matter, the principles of early case assessment are. Spending a few hours on the data prior to batching for review can ultimately save significant dollars. There are several great ECA tools on the market – including a couple of new ones we’re experimenting with – and the costs are comparatively small. And if you’re looking for some bang for your buck, ECA is a great place to start.
Speaking of ECA, our friends at Clearwell posted an entertaining video today (it’s April 1, lest we forget).