E-Disclosure Costs Debate

The second article in my series on electronic Disclosure has been published on the web site of the Society for Computers & Law at http://www.scl.org under the title E-Disclosure in Practice.

The bulk of it describes the process by which a routine set of clients’ documents – paper, e-mails and electronic files – is reduced to a single electronic source. Its headings include:

  • Disclosure documents, disclosure data, metadata etc
  • What size cases justify e-Disclosure?
  • Which software should I buy?
  • Host it in-house or externally?
  • Getting the data in and maintaining it
  • Which support services provider is right for me?
  • Keeping the costs down

These topics are also covered on my web site at www.chrisdalelawyersupport.co.uk. The last heading, Keeping the Costs Down is a summary of views which I got in response to my first article and of discussions at LegalTech in New York. There one has the luxury of time to discuss things at leisure with users and providers, to float over User A what Supplier B said yesterday and try to arrive at a conclusion – even if that conclusion is that there is no easy answer. A discussion at 3:00 in the morning in the Irish Pub on 7th Avenue is no less valuable than one in a meeting room in EC2, provided you can remember the gist of it next morning.

The question which most interested me (because it was what others had asked me) was whether there is scope for providers to offer a “good enough” electronic first pass through the documents at a price which did not leave them out of pocket but which might encourage users, and particularly new users, to commission an electronic resource from the outset. The advantages seem clear enough relative to purporting to advise on a completely unsorted set of paper, mail .PSTs and folders of Word files and spreadsheets. The downside is the up-front, identifiable, cost of getting the material in.

There was consensus on only one thing – that lawyers are kidding themselves and their clients if they think that a manual document review of a large case is any cheaper than a “good enough” electronic database. The only difference is that the whole cost appears in chargeable hours quantifiable only in retrospect rather than partly in a pre-estimated charge for making a database.

Qualitatively, either route may result in documents being missed on a quick review aimed at giving initial advice. One of the objections to a “good enough” first pass (raised by a user not a provider) was that one obvious way to reduce the start-up costs – to ignore the exceptions and relatively inaccessible documents such as zip files within recursive attachments – might result in key documents being overlooked. I do not buy that one: if you want to see the difficult documents, it is much cheaper, quicker and easier to ask a provider to batch-process the lot than it is to open them all by hand. That user’s primary point, however, was that the marginal saving, however much the providers trimmed their costs, would not be big enough to warrant a less than full exercise.

Providers, however, seemed to accept that there was room for costs to be trimmed. They would consider limiting access to key fields and sealing off some functionality, perhaps on a time-limited basis, reckoning to reap their reward in new cases as well as from actual reduction of their own costs.

I was offered another difficulty which I do accept up to a point – that the fixed costs of external hosting militated against treating smaller cases electronically and that the start-up hosting costs, when added to the costs of data collection, undermined the idea of a low-cost pass to assess a case before issue.

My view on this, however, is that we see more providers chasing a pool of existing users and large cases which is not growing as fast as the potential capacity of the market. The actual direct costs of providing a 24/7 hosting facility are not to be under-estimated, but once that facility exists, there must be some merit in spreading it between a larger number of users and cases. If there is not, then where will the providers find markets to expand into?

The final point made in my article is that we have yet to see a reported case in which a firm of UK lawyers and their clients are punished by the courts for inadequate disclosure. My article ends thus:

I do not think we will see a repeat of the US experience. There, Discovery has become a battleground of its own, with punitive awards for defective disclosure out of kilter both with the offence and with the case. The key difference is the magic word “proportionate”. But the stakes are rising, and proportionality arguments will not save a firm who, in an expanding and more educative market, claims to think that the e-Disclosure rules only bite on those who choose to play by them. E-Disclosure is a method of dealing with the rules not an optional alternative to them. For cases of any size, it is no longer optional.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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