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Ediscovery is one of the most expensive and time-consuming parts of litigation. Although there is consensus on the importance of controlling legal spending, the question of how to do that remains. Tessa K. Jacob, Senior Counsel at Husch Blackwell, recently offered eight steps that companies can take to reduce litigation costs. These tips focus primarily on the left side of the Electronic Discovery Reference Model (EDRM), including processes like information governance, preservation, and collection. The recommendations she provided are invaluable for reducing costs for a producing party — or a company that may become one.
No less critical are those on the right side of the EDRM, like review, analysis, and presentation. The opportunities for cost-savings are significant on this end of the cycle: review alone has historically accounted for 73% of total cost! With that in mind, here are seven suggestions to add to Tessa’s list for reducing litigation costs focused on the right-hand side of the EDRM. Receiving parties, these are for you!
1) Compare ediscovery vendor fees
Pricing models among discovery vendors differ greatly, which can have a big impact on your costs. In addition to the cost of storing your data, providers may charge setup fees, loading fees, user fees, training or support fees, predictive coding fees, or exporting fees. To control the cost of ediscovery, make sure to ask the vendors you’re considering about each of these — and any other fees they may levy in special circumstances. You can also look for a transparent and predictable pricing model that will make it easy to project how much you’ll spend. To increase pricing predictability, don’t forget these rules of thumb for estimating variable costs. Ultimately, whatever the model of the provider you choose, just ensure that you’re not surprised by your bill.
2) Pick an efficient tool
In our consumer lives, we expect the speed and simplicity of a Google search, which starts showing results before we’ve even finished typing. There is no reason why you shouldn’t expect the same from your litigation platform. Efficiency decreases every time you have to wait for an email to load or for a search result to update. Consider how quickly these fractional seconds add up over the course of reviewing millions of documents. And don’t forget to account for the time lost when users switch tasks while waiting for their ediscovery software: getting back to the original mindset takes time. To ensure that your chosen tool is as fast as your team, don’t just take vendors’ words for it: test them out. Try a search type or a navigation flow that you regularly use on a similarly-sized document set on the vendor’s live platform. That can help you see if you would end up losing time on an inefficient tool.
3) De-duplicate the collection
Looking at the same document repeatedly is a waste of your team’s time. Consider an email thread with six people copied: if they were all subject to the legal hold, you could end up with six copies of each email in your collection. There’s no need to manually locate these redundancies. A good ediscovery tool can remove exact duplicates – and even near duplicates – from your pool of documents. Look for software that can batch these kinds of actions to save even more time cleaning up your collection.
4) Use predictive coding
Predictive coding does not eliminate the need for manual review. However, what it can do is significantly shrink the volume of documents to look through. As Jack Walker describes, “While traditional human document reviews can take many months to complete, a striking advantage to the predictive coding process is the small amount of time required to obtain results.” A Rand Corporation study even suggests that review tools like predictive coding can save up to 70% of the costs associated with document review. Of course, do your due diligence on the type of machine learning that is most appropriate for each case, and on ensuring that it is defensible (should you be called to defend it legally). Generally, using this type of process generally saves time on the most tedious part of ediscovery.
5) Seek out transparency
Technology’s time-saving benefits are most notable when used as part of a workflow. One process that can be aided by software is team management. On most cases, there are multiple reviewers, with different knowledge bases, habits, and efficiency levels. Having visibility into these differences and how they impact your case can help you discover inefficiencies. For example, if your ediscovery software allows you to see what each reviewer is doing, you could discover early on if a team member doesn’t understand her assigned task. Being able to course-correct like this as you go can avoid duplicate work, which saves time. Reviewer performance monitoring functionality built into ediscovery software can provide transparency into your team’s work, saving hours.
6) Consider the time of your support team
While the efficiency of your billable team members is critical to profitability, don’t forget everyone else. For example, if your billing team spends days getting correct invoices from an ediscovery vendor, that is time lost. If your IT team is working on software compatibility issues, that is time they are not using for strategic planning. While it is difficult to project which providers will require disproportionate time allocation, you can look for signs. For instance, if the vendor’s sales person sticks to a time deadline you provide or if they have case studies demonstrating how long case setup takes, those proxies can help in decision-making.
7) Look for integrated tools
Reviewing documents is not the end of the ediscovery process. Once your team has identified documents of interest, the job of building your case begins. If moving from review to argument building is a seamless process, you will be case-ready that much faster. Some ediscovery platforms offer integration with trial technologies, such as case mapping or trial presentation tools. For instance, if discussions of how to organize evidence and frame your case don’t require exporting and re-importing documents, your team will be that much more productive. The specific integration that matters most for your case will vary, but try to project your needs during the RFP. That way, you don’t spend your post-review period struggling to get data in and out of different systems, a certain time suck.
There are many possible paths to reducing litigation costs. On both the left and the right side of the EDRM, early planning and good partners can help you cut costs. Do you follow any other steps to reduce your litigation costs? Let us know!
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