A Changing Landscape

by Debbie Westwood   March 12, 2009

It’s not how it used to be. E-discovery is becoming more run of the mill with even small law firms working on small matters accepting that the contents of their clients’ computers are just as important as the contents of their filing cabinets. At the same time, clients are demanding lower costs; in part because the economy demands it, and in part because e-discovery can be very expensive (although it doesn’t have to be – and clients are beginning to pick up on this). The proliferation of technology, service models, service providers and increasingly accessible data repositories has increased the complexity of e-discovery projects and sometimes this leads to an increase in associated costs. Lastly, many law firms and their clients are looking seriously at “in-sourcing” what service providers used to do for them – such as some e-discovery processing and hosting larger litigation cases themselves.

So, on the one hand we have more law firms and their clients being drawn into the need to manage increasingly complex e-discovery; it’s no longer the purview of only the large firms and their large clients. On the other hand, we have increasing costs at a time when clients can least afford it, and more clients facing the reality that just because it’s a little case doesn’t mean that the contents of their servers, smart phones, thumb drives, Gmail accounts and so on are less important to the resolution of the case. And, although I’ve just run out of hands, both law firms and their clients are looking to in-source some or all e-discovery services as a means of controlling costs (and sometimes quality also). How can all the players in e-discovery – law firms, clients, vendors, respond to the issues of cost and complexity?


Last month, Martin Felsky’s article looked at the cost of e-discovery and his suggestions of an iterative and collaborative approach to e-discovery make enormous sense. Even if only meaningful meet and confers were seriously adopted by lawyers we would see a reduction in costs, but I think there is perhaps more that can be done.

Clients that have been through at least one large e-discovery exercise quickly realize that if this is the wave of the future, then it’s just not affordable; particularly for those involved in serial litigations. E-discovery has already been ringing alarm bells among the Canadian judiciary due to its chilling effect on litigation. Cases that shouldn’t be settled out of court are being settled because it’s cheaper to do so than to go through a poorly managed e-discovery exercise. Although I never claim that technology solves all ills (it’s people then processes then technology, not the other way around), careful selection of better technology, along with the right processes, could help reduce costs enormously.


In April, I will be speaking at LegalIT 3.0 with Kelly Inglese (from McCarthys) and Sharon Redding (from Bell Canada) about the use of technology throughout a litigation matter. One of the concepts that I hope we will be able to convey is that the days of using one software solution for every case are gone. There are dozens of technologies available for use at every stage of a litigation matter and they all have their strengths and weaknesses. Unfortunately all this choice simply adds to the complexity of e-discovery.


This overwhelming choice creates a problem for law firms (and their clients). Should law firms go with one “almost does it all” solution, or use several solutions? What about the costs associated with this approach? It costs money to train people on new technology and I think it’s no secret that not all lawyers and legal staff are whizzes at software. And then you have the costs of buying, licensing, administering, updating and managing all that software. The SaaS model at least reduces the costs for law firms associated with having to manage multiple software solutions and allows the firm to cherry pick the most useful best of breed software for that particular litigation. But it’s not always the best solution (for example – data processing is perhaps not best performed over the internet . . .).


What about complexity? E-discovery used to be relatively straightforward. Not cheap, not simple, but relatively straightforward. You’d have a third-party provider come in and collect your data. Then they’d process it for you. And then you’d load it into Summation either for a complete review, or after an initial review in a hosted platform. Finally you’d print off all your non-privileged, relevant documents and hand the 50 boxes of documents over to opposing counsel. If you were at the cutting edge of technology, you’d exchange documents electronically.


With the maturing market in e-discovery, there are now several different ways of handling e-discovery from start to finish. Not only are there multiple choices of technologies to use throughout the process, but there are also different workflow options to choose from. Now, I don’t want to be misunderstood here – the EDRM model is alive and well and not going to change any time soon. But within this model are several paths that can be taken depending on a number of factors, such as the litigation readiness of the client, and it is this multiplicity of paths that adds to the complexity of an e-discovery project, and also increases the likelihood that costs won’t be well-managed. This may seem counter-intuitive, but it’s often the attempt to impose “one-size-fits-all” processes and technology onto different litigation situations that creates problems, and problems always result in higher costs.


So once again, we’re back to the need for planning. As “one-size-fits-all” e-discovery doesn’t exist, it’s important to take a broad-based look at how technology can help manage a particular litigation. Every litigation matter will follow the EDRM roadmap, but the detailed paths through that roadmap may be radically different. A company that has an enterprise content management (ECM) solution in place, with litigation hold and sophisticated search features in place is not going to require the same services from an e-discovery vendor that a company with no such technology requires. A large law firm with a well-staffed and well-funded litigation support department will only require help with processing the largest of data sets, or perhaps only selected types of data.


Given that “who does what” is going to change from firm to firm, company to company and case to case it is perhaps more important than the actual technology that all the players in an e-discovery matter are more flexible, more responsive, and more intelligent in their litigation road-map, and the associated use of technology. This might be the only rational response to the twin issues of cost and complexity, but is hardly the magic bullet solution that we would all undoubtedly prefer.