I was discussing some of the issues raised by Craig Ball in his article “Are We Paying Five times too Much for E-Discovery” with some friends of mine when I realized how lucky I was to be in the law firm’s Library/Research department rather than attempting to manage an E-Discovery department. Listening to some of the stories and reading blog posts discussing the reactive strategies that firms adopt when addressing e-discovery projects made my head start to spin (actually, it was more of a slow shaking of disbelief.) Electronic Discovery is not exactly a new phenomenon in the legal industry, but while listening to some of the stories, it was like every attorney that found themselves with an e-discovery case had no idea how to handle it, yet was determined that he or she knew better than the e-discovery experts that were employed by their firm.
Now, I’m sure there are folks out there that have outstanding e-discovery programs, great relationships with their attorneys and clients, and a stable of proficient third-party e-discovery partners they can depend upon for consistent pricing and accurate results. However, from the folks I’ve been talking to, that sounds like the exception and not the rule. What I’m hearing is issues of attorneys submitting data in a hodge-podge fashion; attorneys and clients working out deals with e-discovery vendors on matters without discussing it with those in the firm that are supposed to be the go-to people for e-discovery; vendors charging one price on Monday, and a different price on Tuesday for the same work; pressure to conduct in-house e-discovery work with unobtainable deadlines using inadequate resources, and; the only consistent questions being asked is “how much is this going to cost?” quickly followed by “why does it cost that much?” It would be like me trying to run a law library and having each attorney negotiate separate Westlaw or Lexis contracts on a per-matter basis.
In fact, just like with research, e-discovery really fits that definition of an ounce of prevention is worth more than a pound of cure. When legal research is conducted using improper search queries, or wrong databases, or even wrong research tools, it results in extra costs that are either passed along to the client or eaten by the firm. The same results happen with e-discovery processes. Heading down the wrong path on e-discovery processes results in backtracking and having to start the process over and all the time and money spent turns out to have been wasted. When I conduct orientation for new associates, I stress to them that the research staff in the library has a wealth of knowledge and experience that they need to leverage when conducting research on issues that the associates are unfamiliar. Same applies with e-discovery experts. It’s not saying that the attorney can’t understand how to do the work… it’s just that we’ve hired experts that can make sure that they are focused on doing what they do best, and that is working as a lawyer and finding legal issues surrounding discovery… not working as a technologist and attempting to figure out the best manner to extract data from hard drives.
I went back and re-read Toby’s post last week on reducing price and cost, where he presses for a “business goal” when it comes to handling e-discovery. However, this exercise seems to assume that there is some sort of stability in how firms handle their e-discovery matters. The only way to fight the “Wild West” effect, and move toward a stable e-discovery process is through the establishment of best practices. Law firms have to create best practices for their e-discovery processes that:
- specifically that lay out how matters are handled each and every time;
- define exactly who is in charge of processing the data;
- that clarify to the attorneys and clients the cost involved, and;
- identify what can be handled in-house versus what has to go to predetermined third-party vendors for processing.
My suggestion was that regardless of how long the E-Discovery Best Practices guide turns out, that there should be a one to two-page cheat sheet that is distributed to every attorney that works on matters that involve e-discovery. The faster you can get everyone on the same page, the faster you can get away from the Wild West approach and start working toward those e-discovery business goals.