There are, we know, still many lawyers using some rather basic tools to undertake eDiscovery exercises. Adam Rubinger of NightOwl Discovery, in an article called A Method to the Madness tells of organisations using spreadsheets and emails to collect and search the raw data of eDiscovery / eDisclosure. Go ahead; make my day, as their opponents will perhaps be saying as they stand by to bring applications or motions to compel proper disclosure / discovery.
I was told recently of an English law firm who was proposing to make searches in Outlook, and to record the results in Excel or Word lists for what sounded like a fairly substantial case in which disclosure was critical. The other side was intending to use a combination of Nuix and Relativity with the aid of an external services provider. The start-up costs of the latter approach will probably not be trivial, but I wonder what costs will be run up by the Excel-and-Outlook user – indeed, whether any budget calculation has been made on that side at all. If not, how can any cost comparison be made, quite apart from any questions about the adequacy of the search, the completeness of the disclosure, and the negotiating position of the user?
Adam Rubinger’s article focuses on Method – both the principles of process management and the Relativity suite of tools with that name. Whilst we in the UK may not be as concerned as a US lawyer about the mechanics of legal hold, we do have an interest (or, at least, our clients have an interest) in making it easy to go through the necessary phases of eDisclosure / eDiscovery, to minimise the chance of omissions and oversights, and to be able to line up against opponents and the court looking and sounding authoritative.
The key thing, so far as I am concerned, is the one hinted at above – we can assume that the lawyer using Excel and Outlook as his or her eDiscovery tools is going to cock it up or, at least, will spend an enormous amount of time performing manually tasks which tools like Nuix and Relativity have automated. Before you set off down the Excel-and-Outlook route, it is incumbent on you to work out the relative costs of each approach – all the costs, not just the cost of the mechanics of the original half-baked search. In the UK, at least in relation to recoverable costs, you will be held to that estimate.
Let’s just expand on that a bit: suppose you budget (both vis-à-vis the client and for the court) for what one might call the Toytown method of data collection. That looks pretty cheap, doesn’t it, particularly if you under-estimate the time actually taken to do the work? Now factor in the costs of printing, of arguing about it all, of facing an application to compel better discovery / disclosure and of actually using the result to find evidence and build a narrative (how exactly will you do that in Excel btw?). If you did not allow for any of that in the budget, then it is unlikely that you will recover it from opponents if you win, and from the clients in any event.
The estimates which you should have got may not look so large when compared with the ex post facto realisation of what you did actually spend. I suppose you could always write off the time.
Adam Rubinger’s article may relate specifically to legal hold, but the principle – of using the right tool for the job – applies to the whole process.