I was a baby lawyer in 1997, when email was just getting started at law firms and clients. I moved through my associate years doing paper discovery, then to using Summation, then to starting to explore the viability of other hosted and more robust review tools. Since I formed ESI Attorneys, I’ve watched the technology available for handling that data advance at the pace of an Indy 500 car.
I can tell you, without question, that you can learn more with eDiscovery than we ever did with paper. And faster.
The prevailing notion is that eDiscovery costs way more money than most clients can afford. Wrong. It doesn’t really cost more than paper discovery did, but you think it does.
Because you forgot how we used to do discovery. Lawyers charged hourly rates to meet with custodians (then called witnesses), and collected their paper. We never called it the custodian interview, but that’s what it was.
Then we went back to our offices to read the documents, copied them multiple times (can’t use the originals), and reviewed them at least 3-4 times for relevance, privilege, hot docs, and to create a chronology.
For each witness.
All charged to the client.
And if we got a huge production from the other side, we reviewed EACH PAGE of paper multiple times and affixed yellow sticky notes with RELEVANCE or PRIVILEGED handwritten on them. It was a boon when 3M came out with different colored stickies that we could color code our review for our paralegals (who also charged hourly). Remember?
Then we interviewed the witnesses again.
Then we decided on a production set and we carefully affixed an individual sticker with a Bates number to it. Then we copied it AGAIN and produced it.
And ALL of that time was charged to the client. And the client paid it.
Later, we started scanning it in, paying to OCR the text of each individual document so we could search the text. And we charged that to the client.
Now we have larger volumes of information because of ESI, but the process is exactly the same. The only difference is that the client (hopefully) pays someone who understands ESI to request, collect, and organize the data for review. A sophisticated client might even outsource the review to an experienced review team, instead of new associates at the law firm.
Either way, the client pays up front to have the proper data set culled down to what should be reviewed, instead of enormous bills for review later on.
So, not really that different, is it?
Here’s where the difference is: when we truly use ESI instead of scanned versions of it (yep, I’m talking native data), we can use amazing technology to create the story of the collected data before your very eyes. And the client pays an incredibly small fraction of the review costs it would normally because the data is organized by issues and sorted using analytics so that review is meaningful the first time.
Not only that, but you learn more FASTER. And learning faster what the facts are helps you assess the risk of a case and what you should spend to move forward or resolve it sooner.
You review less, spend less, and learn more.