Electronic Discovery (e-discovery) has, in many ways, opened up the floodgates of evidence in litigation. E-Discovery is a blanket term applied to the disclosure of electronic information and records during the “discovery” phase of litigation when parties are required to exchange evidence. This specifically encompasses electronically stored information (ESI), such as emails, electronic messages, database files, web sites, and any other electronic information that could be relevant at trial including metadata.
Any discovery that is carried out in an electronic format is considered e-discovery. While it’s easy to assume that electronic delivery and management of documents during e-discovery is cheaper and easier than traditional discovery, don’t be fooled. Quite on the contrary; the costs associated with e-discovery can be astronomical. But why does e-discovery cost so much, and what can be done to predict and control e-discovery costs?
The well-know nonprofit research institution Rand Corporation recently analyzed the cost breakdown of expenses in e-discovery. Rand researchers discovered that:
- Review of e-discovery materials consumes the majority of all e-discovery production costs, and
- Engagement of outside counsel for review makes up the largest percentage of all e-discovery production expenditures, with external vendors taking up the majority share.
In other words, the most money in e-discovery was spend performing review, and the vast majority of these funds went to outside counsel or legal vendors. So, landing a case that involves complex e-discovery can seem like a massive windfall for a law firm thanks to the many billable hours they tend to accumulate, but the truth is that the majority of these fees flow to e-discovery vendors. This is a major challenge to overcome, particularly for law firms that do not have deep pockets for high overhead. As a result, countless firms are looking for ways to improve the predictability and reduce the amount of e-discovery costs.
Predicting e-Discovery Costs
e-Discovery fees are flowing out of law firms and into the legal services market. In order to even be able to accept cases involving substantial amounts of e-discovery, firms must be able to reliably predict how much e-discovery will cost. Unfortunately, however, there are not too many ways to improve the predictability and efficiency of e-discovery expenses.
It is not likely that law firms will stop relying on resources to support e-discovery, so labor costs are not likely to be flexible. Likewise, increasing the speed of manual e-discovery review is only feasible within set limits. Based on the fact that there is little to be done to reduce the human resource or time cost of e-discovery, the only way to improve e-discovery cost outlook is to harness the power of computer categorization.
Digital Transformation Pushes e-Discovery Forward
The collecting and processing of e-discovery information during the review stages is where the majority of fees flow in normal e-discovery. Manual techniques for grouping documents and performing reviews on a categorical basis are techniques that have been developed to improve the efficiency of e-discovery collection and processing, but it is unlikely that manual processes can make major gains in the efficiency of e-discovery review in complex cases. As a result, new technologies like computer visualization and predictive artificial intelligence (AI) are breaking onto the scene and fostering another wave of digital transformation in legal discovery.
Computerizing for Cost Predictability
Part of the reason why so much time and money is committed to the human resources that support e-discovery review is because people are intelligent. They are able to review a wide variety of materials and identify what may be a crucial smoking gun or a privileged piece of attorney-client communication. Legal professionals are also capable of highly complex categorizations, and can easily differentiate complex documents based on simple visual cues.
Now, the most sophisticated e-discovery technologies allow attorneys to easily identify, categorize, and manage case facts at the most granular level. But the increasing sophistication of e-discovery technologies is blossoming right alongside increasing amounts of digital data.
Electronically Stored Information is Increasing Every Day
E-Discovery encompasses all non-privileged evidence presented in a digital format. This includes text messages, emails, digital images, audio files, video files, electronic calendars, instant messages, cellphone use data, database information, spreadsheets, animations, websites, computer programs, and the electronically identifiable information they create.
In 2021, people created 2.5 quintillion bytes of data every day. This includes over 300 billion emails that are sent every day. The average worker uses more than 9 digital applications per day as well. As these communications and digitally identifying information that accompanies them continue to increase, so will the demands of e-discovery.
Capturing all Discoverable Data
With the increase in digital transformation and the acceleration of working from home triggered by the recent COVID-19 pandemic, more and more people are using their mobile phones for both work and personal use. When work-related communications become relevant to e-discovery, however, it can be different to distinguish between what may be relevant and what may be part of a private conversation. In these circumstances, it seems as if there is little choice other than having legal workers comb through the data in the phone and decide on a case-by-case basis what information is relevant and what is not.
Many of us perform business on our personal mobile phones. But should this open up all of an individual’s electronic communications to in-person review in the event a worker’s company gets involved in a case that requires e-discovery disclosures? This raises substantial concerns regarding privacy – not to mention the cost and inefficiency associated with combing through countless communications looking for a needle in a haystack. The solution to these problems can be found in the growing field of software solutions in the e-discovery space.
ModeOne Powers Mobile e-Discovery
ModeOne is a technology solution that allows attorneys in e-discovery to obtain and manage case facts and supporting evidence from data stored on smart phones and short-message chat applications. Using a workflow that is automated, defensible, and secure, ModeOne has developed a cost-effective and cost-predictable method of performing e-discovery. Flat-fee per unit and volume-based subscription fees are each available to ensure that no matter what your firm’s e-discovery needs may be, ModeOne can provide a predictable and defensible cost estimate. ModeOne is committed to providing clients with full budgetary visibility, allowing them to manage case budgets with cost-certainty. To learn more about ModeOne or book a demo, visit https://modeone.io/.