An article called Inside eDisclosure: Dispelling the price myth by Tom Hall on the CY4OR eDisclosure blog reminds lawyers that they are now required to prepare an estimate of costs of disclosure for exchange before the first case management conference. This, of course, is an obligation quite separate from the smaller number of cases which are subject to cost management and which require full budgets.
The duty to provide costs estimates requires the lawyers to consider in advance how they intend to deal with disclosure and (which is harder) to estimate the time and costs, possibly of alternative ways of approaching the problem.
Tom Hall refers to a practice which is common – the use of Microsoft Office as a review tool and, specifically of Outlook as a means of finding and reviewing documents.
Outlook may well be adequate as an everyday business tool for finding (for example) the emails between two people over a given period. It is far from adequate as a means of complying with the obligation in the Rules to find all documents which are supportive of or adverse to the case of the giver all any other party, for proper keyword search or for finding everything which relates to a given topic. Even once you have found those which (perhaps) fit that definition, the task of reviewing them in Outlook is a) significant and b) almost incapable of pre-estimation.
To take one example, most proper eDiscovery / disclosure platforms now include the ability to identify the single email which includes all other emails in a chain. Without that facility, every single email meeting the search criteria must be looked at separately and decisions made about them. It is not hard to see how this can both increase costs and make them incapable of calculation.
Tom Hall’s point is that the case does not have to be a big one before these costs become significant. Anyone preparing to give disclosure in a case of any size ought to be aware of the alternative ways of doing it and of the relative costs.