Can There Be Cost Effective E-Discovery?

A recent post by David West, a veep of CommVault argues that there are "Smart Shortcuts to More Cost-Effective eDiscovery." Basically, the suggestion of this vendor is that e-discovery be moved in-house, avoiding the sometimes extremely high costs of outsourcing to third party discovery vendors. Of course, the 800 pound gorilla in the room is the entry fee for being able to move e-discovery inside.

Clearly, a corporation which is willing to invest the time and money to build systems which permit it to anticipate demands for electronic discovery can find cost effective shortcuts to e-discovery. More importantly, they might even find it affordable to defend meritless cases in which massive e-discovery demands are levied upon them and thereby avoid the vacuous evaluative conclusion "it is cheaper to settle than to discover." It is a real question in the current economic climate whether many corporations will be able to afford the high startup costs of buying the tools and building the systems necessary for effective, defensible in-house e-discovery. However, it is an equally real question whether corporations can afford NOT to make the investment lest the house come tumbling down when the "bet the company" e-discovery case comes along.

Ethical Outsourcing of EDD

Outsourcing is the rule, not the exception with EDD. We hire electronic data discovery vendors to collect and cull our data; we hire vendors to host our data; we outsource the coding and review functions to third party shops (sometimes in India) to speed the process; and we hire contract lawyers to sit in house and assist us with the review. The American Bar Association Committee on Ethics and Professional Responsibility has just issued a new opinion, outlining lawyers responsibilities in outsourcing. Formal Opinion 98-451, available from www.abanet.org. While not breaking new ground with this opinion, the ABA emphasizes the ethical responsiblities that lawyers and law firms have to supervise the third parties highed to perform these functions. Those duties range from protecting confidentiality of client information (Rule 1.6) to supervision of professionals and non-professionals performing the work ( Rules 5.1 and 5.3).

The bottom line is that lawyers have a duty to make reasonable efforts to ensure that the conduct of the lawyers and non-lawyers to whom tasks are assigned is compatible with the applicable ethical obligations of lawyers.

Because these outsourced service providers are so important to the process, this opinion underscores the importance of carefully choosing the third party providers, thoroughly evaluating what is to be outsourced and continually monitoring the work of the third parties. Therein lies one of the great challenges of finding the balance which is the objective of this blog, namely the balance between effective and effecient electronic discovery and full disclosure of relevant evidence in the litigation.