A February 19, 2013 post on the on-line version of the ABA Journal has some interesting tidbits and suggestions in the eDiscovery area.
In line with results from a Compliance, Governance and Oversight Counsel (CGOC) survey, the average legal department spends approximately $3 million per discovery to gather and prepare information for opposing counsel in litigation. The RAND Institute for Civil Justice has published a 2012 study that points out the cost of legal review for privilege and responsiveness costs an average of $0.73 for every dollar spent on eDiscovery. The average civil eDiscovery matter can include between 3 and 5 GB of potentially responsive ESI per employee. 1 GB of data can contain between 10,000 and 75,000 pages of content; and, multiplying that by 3 means you are conservatively looking at between 30,000 and 50,000 pages of content that should be reviewed for relevancy and privilege per employee. The task and expense gets daunting when one also considers litigation and eDiscovery usually includes more than one employer, ranging anywhere from two to hundreds of employees. This review process is the largest single expense in the eDiscovery process.
According to the ABA Journal post, the top four cost reduction strategies being considered by legal departments are:
1. Bring more evidence collection and analysis in-house to do more Electronically Stored Information (ESI) processing internally;
2. Keep more of the review of ESI in-house rather that utilize outside law firms;
3. Explore off-shore review; and
4. Pressure external law firms for lower rates.
The post also discusses the traditional “linear review” process, where documents are divvied up and distributed to individual reviewers, which may lead to inefficiencies due to inconsistencies in review (unless very precise guidelines have been put in place).
Traditional linear review is usually accomplished in the following manner (simplified somewhat for at least conceptual understanding):
1. Data is collected from affected custodians;
2. Data is collected from enterprise repositories;
3. Keyword searches are run on collected data to build a “potentially responsive data set;”
4. The potentially responsive data set of 112 GB (1.12 million documents) is sent to outside counsel for review and tagging;
5. Outside counsel assigns a team(s) of attorneys to review 1.12 million documents for privilege and relevance; and, for a hypothetical “end result,”
6. At $70/hour and a review rate of 55 documents per hour, total document review costs $1.425 million