The article to which I am about to refer you may be the most important eDiscovery article you read this year. It is by Casey Flaherty, Corporate Counsel at Kia Motors America, and is called E-Discovery Costs Prediction: It’s Time to Share, with the sub-heading The big guns of EDD need to maintain a tool we can all use. His theme is the need for a uniform basis for seeking and receiving estimates of the costs under the various headings relevant to eDiscovery.
I have written before about a conference which I attended in San Diego earlier this year (see A packed agenda at the Information Governance and eDiscovery Strategy Exchange in San Diego). I was one of the chairman and moderators, and therefore had the opportunity to decide what I wanted to talk about and who should be on the panel. Among my panelists was Marla Bergman, VP and Assistant General Counsel at Goldman Sachs, on a session devoted to eDiscovery metrics.
Metrics – there’s a word to chill the bones of the arts graduates who become lawyers. I am one of those who chose law as a career in order to keep as far away from sums as possible. Marla Bergman’s main contribution was to explain how she keeps track of the costs of past cases and uses them to aid prediction for present ones. That goes beyond mere budgeting and into the case strategy (“Is this case worth fighting?”) and into the tactics in the sense that a lawyer who is manifestly on top of the costs, like one who is on top of the law, the facts and the documents, is in a position to overawe less well-prepared opponents and to impress the court which is necessarily dependent on the input from the lawyers.
Metrics also came up in the costs management component in the then pending Jackson reforms in the UK. From April 2013, lawyers engaged in civil litigation must prepare a costs estimate for electronic disclosure in nearly all cases, and budgets for those cases which are subject to costs management.
Helping to deal with that is the budgeting software called Engage created by Thomson Reuters Elite which I saw at an Elite conference in Miami Beach where I was speaking about the new UK budget requirements. During the demo which accompanied my talk, a lawyer in the audience audibly gasped – “You mean we lawyers are going to have to do that?” Yes indeed, and not just where the rules require it. Clients are expecting it.
Back to the conference in San Diego. In the days running up to it, I had been party to some email correspondence with various interested people (including a large law firm) about the difficulty of making sensible predictions of eDiscovery costs; this is hard for all sorts of reasons, including the fact that every provider of eDisclosure / eDiscovery software and services has a different way of presenting the figures, so that making an apples-to-apples comparison is extremely difficult. Even as an email arrived from England continuing this correspondence, Marla Bergman and Casey Flaherty were on the platform talking about this, with Flaherty describing his ambition to create a standardised method for comparing all cost projections. As he says in the article to which I now link “…let’s start now”.
With that, I will turn you over to his article with only two observations. The first is that he is right; his argument is enhanced rather than the reverse by his acceptance that he is in the hands of people who know more about the technology and the components of cost than he does. I do not think that this imbalance will last for long having heard him speak and read his article.
The second point is the easy prediction is that many eDiscovery / eDisclosure providers will throw up their hands and exclaim that Casey Flaherty is asking for the impossible. You will find, I think, that his article anticipates pretty well all the arguments he is likely to hear.
No-one suggests that this is easy. Many of the arguments are similar to those which one hears from litigation lawyers when they are asked to predict or even fix their own fees, and it is not merely self-interest or distaste for mathematics which makes that difficult.
Difficult or not, it must be done. Casey Flaherty may be the most vociferous of those who commission litigation work from lawyers, but he speaks for many in his position, and they are the buyers. At least one major player in international litigation is out there telling its lawyers, and those who would like to be its lawyers, that it expects them to take part in a kind of reverse auction for litigation work, pressure which is even more significant than any costs management rules can bring.
Read Casey Flaherty’s article and tell him (not me) what do you think, whether you are a buyer or a seller in the market of which he writes. His email address is at the foot of his article.