eDiscovery in SA - using eDiscovery technology is too expensive for SA??

No, it is not! 

I hear the comments about the cost of eDiscovery technology very often here in SA, and, to be fair, I used to hear them quite often in the UK too, until there was more use and enlightenment. Although I have referred to it in previous blog posts I thought we should dedicate an entire post to the subject. Timing is everything, and recently I am aware of more and more cases within SA using technology, as well as comments about increasing volumes of electronic data and/or technology not being used to its best advantage. All of these, have significant impact on cost. However it goes much much deeper, in that, in truth it is all about education and understanding.

To begin with some global statistics, it is felt that using eDiscovery technology will reduce overall  costs by at least 30% and the highest cost of a case is review which accounts for approx 70%. If you think about the latter statistic it is not surprising that this is where most of the cost occurs. Clients have to pay the hourly rates of the reviewing attorneys and, without using technology, the likelihood is that they will review every document collected. Many of these documents will be irrelevant, and before continuing with this thread, some of you will be saying that of course the attorneys have to read every document to be able to determine if they are relevant or not. All of us in the eDiscovery industry would categorically dispute that contention. It is well established globally that you do NOT have to read every single document and there are decided cases on the point. So, how do you use eDiscovery technology to avoid looking at every document whilst at the same time satisfying your duties to the client and the Court, as far as discovery is concerned. I have dealt with this in detail in previous posts but, briefly, the technology identifies and sets aside duplicates; filters the document collection by the appropriate date range; filters the collection by restricting what needs to be seen from specific people (custodians) only; and then uses a variety of techniques to filter the resultant collection further, allowing a much reduced volume to be physically reviewed. Therefore, it is blindingly obvious that using the techniques stated above will positively reduce the cost of reviewing, as many documents will have “machine eyes” rather than “human eyes”.

Of course there is a cost associated with the use of eDiscovery technology. The client will need to pay for collecting and processing the data as well as the scanning of the paper documents if there are any. Then there will be the hosting and user costs of the eDiscovery software along with associated costs paid to the service provider for training and for their expertise. Heaven forbid there may also be costs associated with the instructing of an expert eDiscovery Consultant, such as myself (although I can virtually guarantee that my costs will be covered by savings that I make). 

The major point though is that when these costs are set against the now decreased costs of the reviewing Attorneys, statistics show us that the overall saving will be at least 30%. As a client, this fact is more than attractive and as an Attorney it has to be part of your duty to your client. Please, please, do not let me hear comments from Attorneys that if using technology means they review less and therefore have less billable hours so why should they recommend the use of the technology? I have heard it all before, in the UK as well as here, and all I will say now is that this attitude will lose clients whereas a proactive methodology as to how costs will be saved will undoubtedly win clients.

I want to take this topic one step further as far as SA is concerned. I have seen and am aware of a number of cases here where eDiscovery technology is being used. Great - so what is the problem? The problem is that in many instances the technology is not being used to its best advantage. It is like buying a car or an expensive piece of gadgetry and only using 10% of its features and capabilities. It is not a waste of money but it sure is not best practice or best cost efficiency. Now, in truth, the problem is not entirely the Attorneys. It is also the service providers because of their inexperience in what is still a fledgling market here, who are not advising their clients as to all that their solution can do. The best example I can give relates to keywords and I mentioned this in a previous blog post . My concern is that Attorneys prepare a list of keywords and the service providers faithfully apply that list. Sometimes there will be words that will produce far too many hits to be of value. Sometimes the case requires other features such as date range filtering, TAR and others, in addition to keywords. Always, not sometimes, the service providers need to be advising their clients on the list of keywords, suggesting alternatives, and reminding them that keyword lists are “living things” not a once and for all list. Another common example here is that where there are paper documents they are scanned and made searchable with OCR software. That is fine but still not best practice and not cost nor time efficient. These scanned documents then need to be logically unitised and objectively coded so that they can be subject to the same eDiscovery technology features as electronic documents. Are the service providers telling the Attorneys this? Are the Attorneys advising their clients?

So, you see that, if the technology is being used but not to its best capacity then there will still be too much money and too much time spent on irrelevant review. Just using technology and patting yourself on the back is not enough. This is all about a mindset change for Attorneys, their clients, and service providers alike. I have never been involved in any case either here or in the UK without saving a considerable amount of time and money, but it needs all of the players to understand that and play their part. 

Terry Harrison

ediscovery@terryharrison.co

+27(0)748347818