eDiscovery And The Law Firm

Nick Croce of Inference Data wrote some good stuff in his vendor-neutral white paper, "Transforming the Law Firm: The Impact of Technology on Law Firms & Their Clients." He points out that a survey of corporate General Counsels showed that they were profoundly concerned with legal discovery's cost control or lack thereof. At the head of the list is the cost of outside counsel and the inherent frustration in matching invoiced costs to services rendered.

Outside law firms are uncomfortably aware that their corporate clients - who are making tracks with their pocketbooks -- are unhappy with discovery costs and lack of accountability with traditional law firm invoicing practices. We're not talking chump change here. Yearly attorney review fees in the U.S. alone reach well into the billions of dollars. Adding insult to injury, the vast majority of reviewed documents are irrelevant. Granted, the idea behind review is to identify relevance, but there has to be a way to cut down on the amount of documents that hit the review platform in the first place.

There are several ways to significantly reduce the amount of data going to review. These won't make outside counsel happy since they cut deeply into its eDiscovery profits, but they're losing clients over the high cost anyway. One of the most basic methods is to process collected data for de-duplication. This is a foundational practice that every corporation should be using. Another maturing eDiscovery approach is to use software to analyze collected data for potential relevance. The software takes the place of the human reviewer in the early stages of collected document review, even before the mass is processed and exported. The Judicial Conference Advisory Committee got into the act with a commentary on Rule 502: "Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken "reasonable steps" to prevent inadvertent disclosure." Note that this isn't a blanket statement. You must take "may be found" seriously, but it is certainly a positive step in the right direction.

Forward-looking law firms are looking at three primary goals to retain their eDiscovery profits: tie invoicing to detailed and reasonable eDiscovery hours, use technology to make their review faster and more efficient and use eDiscovery technology as a competitive offering.  Law firms that are not forward-looking are just trying to keep the old discovery ship from sinking. Good luck with that.