The quarterly publication of the International Legal Technology Association
Issue link: http://read.uberflip.com/i/230349
what the client must produce. When that approach became too expensive, attorneys abandoned the review process altogether by producing everything and relying on clawback provisions to insulate them. This bipolar approach to e-discovery is unsustainable, and clients have begun to protest the costs of the paper-based approach and the risk of the "go fish" approach of producing everything with no review. And yet, disappointingly, corporate clients' requests for rationality often have been met with cynicism by their lawyers. Many lawyers would suggest being wary of advanced technology because: 1. There isn't enough legal support yet (no precedent) 2. It's way too expensive 3. The technology is too complicated to explain and advocate 4. Using the technology increases risk and the chances ofsanctions None of these statements are true. Advanced technology, predictive coding in particular, is a legally supported and proven solution that will increase quality while decreasing risk and the likelihood of sanctions. THERE'S NO PRECEDENT Having collectively attended over 100 e-discovery conferences and seminars, we often hear of outside counsels' resistance to the use of predictive coding and other software because of their concern it isn't sufficiently accepted by the courts. Naturally, lawyers can be reluctant to forge a new path and often counsel their clients against it. But the predictive coding path has been forged. It started with recognition by some on the bench that advancements in technology could ease the burdens and costs associated with the discovery of massive amounts of electronically stored information. Some judges addressed the shortcomings of keyword searches and opened the door for parties to seek other "information retrieval methodologies" that would be appropriate for their particular circumstances. Those cases led to another set of cases that last year concluded that computer-assisted review was acceptable (see EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL). As the judge in this case remarked: "This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go." Judicial endorsements are exactly what the proponents of predictive coding and other advanced review technologies must seize upon to apply available state-of-the-art technology to their discovery tasks. The dominoes have begun to fall. Civil litigants now have plenty of legal support for the use of predictive coding 70 Peer to Peer technology. Federal and state governmental agencies now have enough cover to openly take advantage of the benefits of this crucial technology. The usual outside counsel suspects can no longer point to the lack of precedent to support their reluctance to save their clients money through the use of predictive coding. IT'S TOO EXPENSIVE Purchasers of legal services have been their own worst enemy when it comes to driving down costs. In fact, the cost of e-discovery technology has plummeted, yet there is still a prevalent sense that the cost of implementing advanced review technology is impractically high. The costs associated with technology typically represent 10-15 percent of the total costs associated with discovery. One problem is that the buyers of discovery services often have engaged multiple vendors to collect, process, host and ultimately produce the data collected from a client. This meant each project involved numerous for-profit companies trying to make a buck. Putting aside the fact the more companies involved in a project means the more people and entities that can make a mistake along the chain, hiring multiple vendors invites people doing the hiring to look too myopically at the pricing at various steps of the process to the exclusion of the ultimate cost of the project. In the a la carte approach, purchasers try to get the best per-unit price from each vendor. Historically, this incentivized the multiple vendors to lower unit prices to make it appear they're giving the client a terrific deal. Then the client took its eye off the ball when it came to the actual services being provided, giving the vendors the ability to make up the difference and even sometimes inflate the price by collecting, processing and hosting an excessive and unreasonable volume of data. This led not only to unreasonably high pricing for each e-discovery technology service, but worse, it led to an incredibly expensive review project because of the obscene amount of information that had to be reviewed in a linear fashion. Hiring a single provider or law firm to provide all the necessary services under one roof often eliminates these problems and allows the client/customer to focus on what's truly important: the value and price of the entire project from collection to production. First, hiring only one service provider puts that provider in control of the entire process, which gives them the ability to take a loss in some areas so it can make a profit in others. That law firm or vendor is thus incentivized and capable of charging less for the actual deliverable while still maintaining an appropriate margin and forcing the provider to take a thoughtful approach on every e-discovery step. This becomes especially true when technology is used. Leveraging advanced technology allows for, and requires, a carefully orchestrated series of steps designed to drive down volume at each stage of the discovery process. This means processing less data, hosting less data and ultimately reviewing less data.