One way of cutting our eDiscovery bills would be to write fewer emails, videoconference less, ditch Facebook and generally go on a strict data diet – but we all know that won’t happen. In fact, the opposite will happen: we shall have more data, more data formats and more data formats that are obsolete. One radical solution is to give up eDiscovery altogether and there is evidence that this is actually happening: with eDiscovery now eating up 70% of the total cost of litigation, companies are thinking twice before taking recourse in the law.
It is a lost battle of course. As regulatory bodies tighten up their scrutiny – and, as in the case of the European data directive GDPR – threaten fines of up to €4 million, we shall also have more eDiscovery.
That leaves technology. Any eDiscovery platform worth its salt cuts down 100GB of unstructured data (a very modest amount by today’s standards) to a mere 500MB – clearly a huge saving, as most of the money goes on billable hours for manual review. What is more, eDiscovery vendors have done a great job in making this technology accessible even to lawyers who complain that they are ‘no good at computers’.
Law firms and other eDiscovery service providers have been slow to adopt this specialist technology, and it’s not hard to see why. A recent survey of 103 U.S law firms found that almost three-quarters (73%) charge their eDiscovery services as billable hours – those same billable hours that modern technology gets rid of so successfully!
The survey also shows that only around a third (32%) of law firms share a technology platform with clients to keep them in the loop about the progress of their eDiscovery project. But this is staggering. Two-thirds of companies who outsource their eDiscovery are effectively shut out of a process that is critical to their business.
You could argue that Business has been too passive in accepting the rise in eDiscovery costs as inevitable, but this discussion is now irrelevant as companies – all companies, in every industry, in every sector, no matter what their size – has to act to bring down costs. The status quo is not an option.
As law firms and other eDiscovery service providers continue to drag their feet about controlling costs – that is to say, about investing in the most advanced eDiscovery technology – organizations are increasingly going it alone.
The financial and technological barriers to implementing the kind of end-to-end solution that is threatening the business model of the eDiscovery providers are very low. Start-up cost with SaaS are near zero. And if you can open your emails in Office 365, you have the technological knowhow to use a modern eDiscovery solution.
The most immediate advantage of an in-house eDiscovery solution is that centralized platform that most law firms don’t want you have. This imposes a workflow on your eDiscovery process, and makes it much easier for IT and Legal to communicate with third parties – and each other.
Of course your law firm or eDiscovery service provider will use technology to cull the most obviously non-responsive documents from your data set, but this will be a blunt instrument. There is another consideration: outsourced eDiscovery does not think strategically about your business, and the litigation you are pursuing. With an in-house eDiscovery solution, you can respond immediately to a request for eDiscovery (before all the data is even collected), and gain valuable insight into the size and complexity of the case and how you should frame your deliberations around an early and favorable settlement. The next level of review – Assisted Review or TAR as it is often known – is a technology too far for a lot of law firms but provides deep text mining and forensic functionalities that will cut your documents for manual review further.
There is no need to fear this technology. For far too long, law firms have maintained an elaborate mystique around the eDiscovery process which – with the right technology in place – is much more straightforward and satisfying than you thought.