An article called Managing E-Discovery Costs with Managed Review by Rachel Teisch on the Xerox Litigation Services blog shows that the subject of managing eDiscovery costs played as big a part at the Carmel Valley eDiscovery Retreat as it did at the Information Governance and eDiscovery Strategy Exchange which I attended in San Diego.
Our focus, as I am sure was also the case at the Carmel event, was on predicting costs, not least by reference to historical data of previous cases, and on comparing different ways of achieving the objective. One of the panels which I moderated in San Diego, for example, compared a largely in-sourced approach with an out-sourced one.
Rachel Teisch’s article looks at out-sourcing review, and in particular at managed document review by a provider (of which Xerox Litigation Services is one) which marries the appropriate technology with managed review, with both elements in the same hands.
The article stresses that “managed review should not be mistaken as an invitation to abdicate complete control over the review process”. It is an important point to make. Most lawyers, I think, appreciate that they remain liable for the outcome of the review, whoever actually does it. What is easily missed is that out-sourced review, in the hands of a company like Xerox Litigation Services, is not a “fire and forget” delegation of work but an entirely cooperative exercise over which the lawyers retain complete control; the many merits of managed review, apart from transparency and predictability of cost, is that it leaves the lawyers to focus on the strategy and tactics and on supervisory control of the review, without the burden of day-to-day management of the people.
The predictability point is likely to become increasingly significant in England and Wales following the introduction of new rules on 1 April which provide for estimates of disclosure costs and, in some cases, formal budgets. Providers of managed review services are well used to predicting costs – they have to do it with every job they take on.
Is managed document review right for your next case? You don’t know unless you a) ask one or more providers for an estimate and b) can calculate the costs of doing it any other way. Since you can now expect case manageing judges, at least in England and Wales, to cross-question you about the options, it would be as well to start doing the sums now. Clients in any jurisdiction will be coming to expect that comparsion to be offered as a matter of course.