Top 3 Reasons People Get Surprised By Their eDiscovery Bills – And How I Manage Expectations To Avoid It

I am fanatical about ensuring my clients are never surprised by an eDiscovery bill.

In my last article, I outlined some techniques I use to facilitate communications between the various team members at the outset of the project to avoid eDiscovery surprises down the line. I received a lot of questions about identifying potential changes in scope and managing client expectations around those changes.

The truth is that changes in eDiscovery scope are an inevitability. Facts clarify and develop; opposing sides take unanticipated discovery positions; the court makes unexpected rulings. As the situation evolves, the discovery needs start to slowly deviate from the original estimate. Before too long, those small deviations in scope become substantive expenses. If these risks and changes are not adequately identified and communicated up front, clients can end up surprised by a bill.

These are the 3 things that I most commonly see cause change in scope -- and the techniques I use to estimate the uncertainty to set expectations with my client from the get-go.

1. Search Terms –

Often when I am asked to provide an estimate of total project expenses, the search terms have not been finalized or optimized for efficiency. Estimating how much culling will occur during the search terms significantly drives downstream costs.

In order to get an accurate assumption of culling ratios for the budget and to design efficient search terms from the get-go, I like to test the proposed search terms against a few key priority custodians. Typically, that allows my team to provide a more accurate range of what is likely to be inclusive documents, while simultaneously allowing the team to consult on search term efficiency. By consulting and collaborating with the subject matter experts on the matter, my team can quickly get an understanding of how many documents are subject to review, available for exclusion, or potentially in a grey area that will be determined based on opposing and court input.

2. More Custodians –

Typically, there a few primary custodians that are clearly in the scope of eDiscovery at the outset of the matter. But, other custodians related to the matter usually emerge down the line. If that potential increase in scope has not been identified and quantified at the outset of the matter, those additional custodians can incur surprise expenses.

Attorneys generally have a long list of potentially relevant actors that they have surfaced from custodian interviews or experience in similar matters. Confidently reducing that list to only relevant actors at the outset of the case is near impossible. I like to have my team run a few priority custodians through NexLP's StoryEngine first. It helps us quickly and accurately define the list of potentially relevant custodians quickly – and I have found gets a more accurate range for the total project estimate.

3. Other Data Sources --

This is generally the big unknown unknowns.

Alternative data sources such as social media accounts, audits of collaboration tools, Slack, WeChat, WhatsApp and other alternative data sources may have been excluded in the initial scope. While most industry insiders think of eDiscovery primarily in terms of email, office documents and text messages, these alternative data sources are an increasing share of data and an increasing source of evidence. In a lot of cases, the “smoking gun” cannot be found. But, communication trends developed across all these alternative communication channels are used to support legal arguments.

To evaluate the risk of scope expansion due to alternative data sources, I usually just ask my clients if it is on their radar. If it is not on their radar, we identify it as a known unknown on the estimate. After that conversation, some clients include inquiries about alternative data sources on their standard custodian questionnaire.

With my clients, I have received a lot of positive feedback with taking a look at these three topics very early on. In addition to reducing costs and giving my clients a competitive advantage, these discussions arm my clients with all the facts so they can more proactively manage their eDiscovery budgets from the outset of the case.