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Gregory L Fordham
Legend has it that in 1860 Thomas Huxley argued that six monkeys with six typewriters and infinite lives could produce all the works of Shakespeare. Huxleys’ opponent, Samuel Wilberforce, a supposed skilled mathematician, is said to have conceded the point in recognition of the laws of probability.
While Huxley and Wilberforce were arguing creationism versus evolution, e-discovery experts are arguing about affordability. As it turns out, the most significant cost in e-discovery is the cost of review. Some have estimated that review costs between $12,000 and $15,000 per gigabyte.
Still others have figured between $3 and $10 per document with about 8,000 documents per gigabyte for a total review cost between $24,000 and $80,000 per gigabyte.
Regardless of the math, the bean counters conclude that the way to lower e-discovery costs is to use cheaper lawyers.
Experienced practitioners already know that cheaper associates are not always a bargain. Their work must be reviewed. Their inexperience with precedent increases their learning curve as can their unfamiliarity with client nuances to name a few. As a result, their lower hourly rate is often offset by more hours.
Interestingly, in 2003 researchers at the University of Plymouth in England concluded that while fascinating, the infinite monkey theory is flawed.
So, if monkeys cannot type Shakespeare after all, can $50 an hour lawyers make e-discovery affordable? If they can, why ever pay more for anything?
The reality is that litigation is not the same as repetitive manufacturing. Also, human imperfection is a long recognized problem to be solved. So, the $50 lawyer theory has flaws just like the infinite monkey theory.
If e-discovery is to be more affordable, it likely means scrapping ill conceived review efforts and not just charging less for them.
Processing vendors have already responded to this challenge by reducing the volume of human review. For example, they have devised ways to electronically eliminate duplicates.
They have developed metadata filtering techniques that remove irrelevant documents as well as reduce false positives. Also, they have improved electronic search techniques to find relevant and responsive documents.
In addition, newer techniques are being developed for grouping similar documents based on conversation, content and type in order to make review more productive.
Finally, they have also improved their review platforms to postpone costly conversion efforts until much later in the process when data volumes are smaller.
The switch from paper to plastic has left many practitioners in the starting blocks. Vendor advances have only further widened the gap between leaders and followers.
Since the gap is not likely to be narrowed by cheaper lawyers, many have suggested better education and training in e-discovery, particularly in the cost consequence of different techniques to all phases of the process. Otherwise, it is like using seamstresses armed with scissors to cut grass.
Also, within the last year there has been an increased interest in cooperation during discovery to reduce motion practice as well as overall costs. Others have also suggested different case management styles by judges.
In order to save costs, litigants have also tried bringing e-discovery in-house. Similarly firms have expanded vertically in order to control costs and grow revenue.
Before proceeding, the industry may want to look at Hollywood that forty years ago abandoned the studio system for a leaner project based approach.
In some respects, free agency is already a part of the legal industry. Unlike individual filmmakers, however, law partners have not widely adopted sophisticated project management techniques to control the cost and schedule of their cases.
Other lessons could be learned from the aerospace and defense industry. The makers of naval ships like aircraft carriers and submarines are no longer the shipyards themselves but electronics companies and system integrators like Lockheed, Boeing and Northrup/Grumman.
The computer will never replace labor. It never has. But it has made labor more productive. It has enabled skilled labor to do even more and better. So, it can make skilled lawyers even better lawyers.
The question is can lawyers adapt to the new technology? Or will e-discovery make a monkey out of them?