What is eDiscovery?
eDiscovery such as Electronic Discovery refers to discovery in which information and investigations is exchange in electronic format.
Taking on eDiscovery in-house can be a great undertaking with a lot of risk, even if it can undercut costs in the short term. Jonathan D. Rudolph, an eDiscovery Manager and Staff Attorney at C.R. Bard, gave some reasons on our Viewpoint discussion with him why there’s a lot to consider before making such a decision.
Pros of eDiscovery
1. It’s a major factor in a budget each year
For companies that are heavily regulated, such as those in the healthcare industry, eDiscovery is always a major expense, and when those numbers reach six or even seven digits in costs, finding a way to bring that number down is a must. So if you can evaluate bills from outside counsel and determine the amount of manpower and hours it will take to undercut those costs, ignoring that would be a big mistake.
2. Easy to cut costs on initial document review
If you have a million, maybe 10 million documents that require review, it’s a no-brainer to reduce the time and money it takes an attorney to review that mountain of data by simply trimming the numbers. Yet through a simple keyword search, just about anyone can easily determine that large amounts of your data is irrelevant to the litigation.
Save costs on this initial culling of data and organize the rest into subsets, relegating certain, more pertinent keywords to outsourced clients, limiting the burden on the in-house staff.
3. Technology is improving rapidly
Rudolph predicts that within 10 to 18 months, predictive coding technology will be next to perfect, eliminating all the false positives that currently make the software a questionable investment. And although it may never be at the stage when at least some form of human intervention is required, companies can arrange standards in such a way that when a privileged review arises, all that will be necessary is to run an update on newer documents.
4. Smart restrictions give the best understanding of the data you have
Rudolph says that companies who restrict searches based on attachments, date, encrypted documents and not solely keywords can give you a much better understanding of the data you have. Having that knowledge in-house can be crucial in understanding what certain members of the corporation are up to.
5. Being proactive gives you a strong defense down the line
“People need to be proactive rather than reactive,” Rudolph says. He claims that defendants who can go in to a 26F Conference confidently and clearly explain how you will conduct a search and why it is sufficient are more likely to have a judge side with them if the prosecution comes up with an objection later. It will require a judge or an opponent to provide concrete reasons as to why something in your method should be modified. “You don’t have to keep reinventing the wheel; you bring the wheel to them and you tell them, if you want to modify this, tell us how and why,” Rudolph said. “The move should be away from defensibility to justifiability.”
Cons of eDiscovery
1. A lack of communication is disastrous
It’s important to make sure every department in your company is on the same page in finding eDiscovery solutions that will benefit the whole. IT and legal and the C-suite must all maintain an open dialogue when it comes to reducing costs, or else there will be a conflict of interest amongst departments. “The second you have one department going out without the others, there’s going to be resentment,” Rudolph said. “It’s going to be very difficult to try and implement something. To that end, you need someone who speaks both languages.”
2. Attorneys are essential and more qualified
In a perfect world, no one would have to look at any document until a privileged review arises. But with predictive coding not where it could be and unexpected variables always a risk, it can be very reckless to assume your in-house employees are better equipped to find crucial documents than a team of trained attorneys.
“My emphatic answer is no, you do not want to bring everything in house, and the reason for that is cost of scale,” Rudolph explained. “Right now, we’re able to outsource to an entire staff of attorneys at which the rate they are being charged, we can have 20 attorneys looking at documents that if we had to pay salaries to handle all the attendant expenses, maybe we’d be able to hire three. You’re not going to get as good a level of review because the people you have to outsource, this is what they do. They know what to look for, assuming you’ve vetted the company properly. These companies are all for the most part using actual attorneys, so you should not be in-sourcing the substantive review of documents.”
A better approach is to only do document review in-house for the documents that anyone can recognize as irrelevant.
If all else fails, it’s important to know you or your company are not responsible when things go wrong. Rudolph put this concern best: “If somebody does something, and you wind up getting sanctioned for missing things, not producing things, mislabeling things, it’s nice to be able to know that somebody outside your organization is accountable for that. Once you bring that in-house, the responsibility falls on you, and you really don’t have anywhere else to look to try and undo the problem or recoup some of the costs associated with it.”
4. Keywords are way in the past
“Anyone who is using solutions based solely on the keywords, I think you’re way behind the curve,” Rudolph said. He explains the reason for this is that software that just uses keywords misses crucial details that are necessary to comply with the court’s requirements. Your solution must adhere to a contextual analysis, filtering data based on email attachments, dates sent, conversations between specific parties and other metadata.
5. There are no standards, and establishing benchmarks is tough
The idea behind insourcing discovery data is knowing that you can look at the costs of your outside counsel and know that you can undercut that cost. But the reason there is no gold standard and right answer for whether you should insource or outsource is because every organization has their own circumstances and their own standards.
Say you have never truly enforced a records management policy and now want to start doing eDiscovery in-house. You may be more thorough than a company who has at least some policy in place because there are no incorrect, preconceived notions to get in the way. On the other hand, you may have no idea what sort of man power, how many hours or what sort of cost it will take to get the job done. If this is the case, your initial benchmark may be hundreds of thousands of dollars off the mark.
- eDiscovery – Costs, Risks, and Remedy
- eDiscovery: Best Practices and Trends
- Is DIY eDiscovery Right For You?
- Understanding and meeting the value of eDiscovery
- 4 Solutions to reducing eDiscovery costs
- Balancing eDiscovery Cost Containment Vs. Risk
- Government eDiscovery Needs and Challenges
- Complex Case Law eDiscovery: Is Predictive Coding a Panacea?