Canadian Lawyer

tECH support ?$ by dera j. neVin $ $ ?$ $ ? Why does e-discovery cost so much? i often use this column to answer questions I am asked in my practice. So it���s time to tackle the most common question I hear: ���Why does this e-discovery cost so much?��� Many can���t stomach e-discovery because it���s inscrutable, leaves little measurable benefit, and simply costs a lot. Many people consider e-discovery costs in relation to a specific case. I have seen some statistics that put e-discovery costs at 40 to 60 per cent of a litigation budget. However, consider that discovery frequently is the most involved step of any litigation and in some cases ��� those that settle before trial ��� the only material step taken in the litigation apart from pleadings. In those cases, the proportion of the discovery cost to the budget makes sense. And because those statistics don���t tell you about the actual cost, including in relation to the cost of delivery, they do not help with budgeting. So I prefer to consider costs at both the project and the portfolio level: what does it cost to do e-discovery in this litigation, and what does it cost in general? It becomes easier that way to make several general observations about why e-discovery costs trend upwards. There are more available ���facts on the ground��� Modern technologies make it easy for people to communicate and do business ��� everywhere and with anyone. As a result, there has been an explosion in the volume of documents, which can now be found in duplicate, multiple formats, and in multiple locations. Today, an individual can receive hundreds of e-mails a day and write just as many. People simply did not write 500 letters a day when typewriters were common. People have more devices, so their work is distributed across several locations and computers make it easier to communicate with 18 March 2013 www.CANADIAN L a w ye r m a g . c o m more people, faster, and doing more transactions. As a result, there has been a corresponding increase in the number of ���custodians��� ��� people lawyers must consider in developing a witness list and strategy for the collection of documents. The result of these developments is there is more stuff and places to sort through in order to locate potentially relevant records. Costs go up when there are more documents, custodians, locations, data formats, devices, and systems from which information needs to be retrieved. Chaos still reigns in the new technology kingdom There is a reason the Electronic Discovery Reference Model (EDRM.net) starts with information governance: where information is not effectively catalogued when litigation arises, parties must quickly respond with ad hoc organization of that information during the discovery process. In effect, I often see companies (and people) expense the costs of information governance through litigation, rather than capitalizing them as part of an information governance program before litigation arises. Additionally, I also see clients and counsel together heading into the e-discovery effort without a plan or a budget. That���s a bit like building a house without a blueprint, or drafting a pleading before you���ve interviewed your key witnesses or read your key documents. Before I take any significant step that will cost money, particularly where it results in some change or limitation to the documents, I will already know the next two or three steps I propose to take. I can therefore evaluate subsequent developments against my budget and project plan. I refer everyone to the EDRM and encourage everyone to understand what will be the plan for every subsequent box by the time they reach the collection stage.

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