Early Case Assessment Provides Bang For Your Buck

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).

E-Discovery is Trust and Commitment

There’s a very good post on Clearwell’s e-discovery 2.0 blog about the process of bringing e-discovery in-house, or more importantly some of the questions that need to be asked during that process.

One particular observation in the post stuck out to me: “…every company today, believe it or not, has an e-discovery solution in place.” This is very true. Many companies who must scramble or shift work around internally to address a pressing matter or who automatically send any and all litigation straight to outside counsel might not characterize their approach as a “solution” (more of a default mechanism, maybe), but it is a solution, nonetheless. From that point forward, the steps and questions laid out in the post are certainly good ways to look at the in-house e-discovery process.

The statement also juxtaposes another observation in the post about in-house departments going through the RFP process and seeking an “end-to-end” e-discovery solution. These two statements, in my view, are actually directly related. Many in-house departments are not equipped to handle any significant e-discovery work, so in the past they simply sent that work to their law firm(s) because they could physically handle the review of the documents (and were already handling case strategy). Now that the in-house departments are under incredible pressure to cut costs, they must come up with a different solution, but still don’t have the resources or time to handle it internally. They want a simple, straightforward solution that they can hand off and know it will be handled in a quality, cost-sensitive manner.

I believe this encapsulates one of the most challenging issues we face in the e-discovery realm today, one that our company has spent an inordinate amount of time addressing internally and that

ultimately helped us create the “end-to-end” solution that we offer. The issue is that there is no one-size fits all in the world of e-discovery. Every case is different. Sometimes a different review tool is needed; sometimes it makes perfect sense to use an early case assessment tool, sometimes it doesn’t; sometimes it’s better to bill by the hour instead of billing by the document, gigabyte or custodian. For us, the ability to offer flexibility was central in our end-to-end service – we’re not tied to one review tool or processing partner, we’re not tied to one type of pricing, we’re not forced to use anything because of previous business purchases, mergers or partnerships.

When simplicity and a straightforward approach are paramount, it boils down to two basic questions: 1) Is the in-house department truly ready to step away from the old way of doing things? and 2) Is the department ready to tell everyone involved, “This is how we’re doing things now?” Simply put, it is trust in the process and commitment to it.

If there’s anything that can be learned by those clients initiating the RFP process, it’s that there is an entire industry of e-discovery providers that eat, sleep and breathe these matters and share a focus on initiatives like protocol, effectiveness, cost reduction, knowledge retention, defensibility, litigation ROI, and dozens of other business-focused issues. In fact, many law firms rely on companies like ours to provide these services and focus to their clients. Only a little bit of due diligence on this front should ease any trust concerns an in-house department might have.

Then comes the issue of commitment, and we see this challenge every single day. In-house leaders are often in terrible predicaments when it comes to making changes in the e-discovery process, especially when they have become so accustomed to particular arrangements. But what we’ve seen time and again is that when in-house counsel sets the tone, works with its partners (including their law firms) to create a solution and a new e-discovery process is implemented, the results trump everything. At the end of the day, the ability to point to a better, more consistent process and to quantify cost savings and value are worth their weight in gold.

So while building an e-discovery process might seem like an arduous task, it really isn’t. It comes down to trust in your partners and commitment to your process, and the payoff on those fronts is significant.


Quantifying All of the Discovery Process

I was fortunate to spend time this past week at a two-day event with a number of in-house attorneys who have created a series of best practices related to record management and litigation holds. It was an educational experience, and it was very clear that the issues we discussed during our time had everyone's attention, more so than at any similar event I've previously attended.

Why? Because everyone is under economic pressures -- extreme pressures -- to cut the cost of litigation and show how they’re doing it. Most of these individuals have already implemented measures to reduce the volume of material prior to litigation ever being filed via document retention policies, records management, and issuing strategic litigation holds when there is litigation. Most talked about their repeatable processes, the software utilized … and the need to have quantifiable data. This information puts them in a position to budget what needs to be spent in order to reduce the volume of data to review. It was clear they have the front-end of the litigation process mapped out and that there was a comfort level with, or a good level of understanding of, those challenges. But this is why I wanted to attend the event.

These same themes -- repeatable processes, the ability to save money, and receiving quantifiable data -- are what we have created for the next steps in the litigation process, when the review is being organized and conducted and the discovery process is moving forward. We have spent the past three years working with clients across the country to mold the best practices when it comes to discovery -- providing a core team of experienced and quality attorneys working on all of a client’s discovery matters and quantifiable data about our team’s performance. This allows our clients to make smart decisions in real-time, justify decisions, and to save not just on one matter, but on all litigation matters moving forward. So when a business person asks his in-house counsel, "What is this going to cost me?" we put that in-house attorney in a position to be able to give a very accurate and detailed answer. We also allow them to proactively follow-up with, "And this is how we have reduced the cost and plan to reduce it even more going forward.”

There's little doubt that these in-house attorneys were seeking new ways to ease the financial pressures they are facing, and it was great to be part of such a collaborative event. Even better was that the more we spoke about the processes that are available and how there are some very real ways they can save money – and quantify it -- the higher their respective comfort levels rose.