In these still questionable economic times, most legal departments are still looking for ways to reduce, or at least stop the growth, of their legal budgets. One of the most obvious targets for cost reduction in any legal department is the cost of responding to eDiscovery including the cost of finding all potentially responsive ESI, culling it down and then having in-house or external attorneys review it for relevance and privilege. Per a CGOC survey, the average GC spends approximately $3 million per discovery to gather and prepare information for opposing counsel in litigation.
Most organizations are looking for ways to reduce these growing costs of eDiscovery. The top four cost reduction strategies legal departments are considering are:
- Bring more evidence analysis and do more ESI processing internally
- Keep more of the review of ESI in house rather that utilize outside law firms
- Look at off-shore review
- Pressure external law firms for lower rates
I don’t believe these strategies address the real problem, the huge and growing amount of ESI.
Several eDiscovery experts have told me that the average eDiscovery matter can include between 2 and 3 GB of potentially responsive ESI per employee. Now, to put that in context, 1 GB of data can contain between 10,000 and 75,000 pages of content. Multiply that by 3 and you are potentially looking at between 30,000 and 225,000 pages of content that should be reviewed for relevancy and privilege per employee. Now consider that litigation and eDiscovery usually includes more than one employee…ranging from two to hundreds.
It seems to me the most straight forward and common sense way to reduce eDiscovery costs is to better manage the information that could be pulled into an eDiscovery matter, proactively.
To illustrate this proactive information management strategy for eDiscovery, we can look at the overused but still appropriate DuPont case study from several years ago.
DuPont re-looked at nine cases. They determined that they had reviewed a total of 75,450,000 pages of content in those nine cases. A total of 11,040,000 turned out to be responsive to the cases. DuPont also looked at the status of these 75 million pages of content to determine their status in their records management process. They found that approximately 50% of those 75 million pages of content were beyond their documented retention period and should have been destroyed and never reviewed for any of the 9 cases. They also calculated they spent $11, 961,000 reviewing this content. In other words, they spent $11.9 million reviewing documents that should not have existed if their records retention schedule and policy had been followed.
An information management program, besides capturing and making ESI available for use, includes the defensible deletion of ESI that has reached the end of its retention period and therefore is valueless to the organization.
Corporate counsel should be the biggest proponents of information governance in their organizations simply due to the fact that it affects their budgets directly.