Recently, I wrote in The Chronicle about how to gauge the size of an eDiscovery project. The ability to estimate costs, create a realistic budget and know when to alert the client to budget deviations are increasingly valuable skills for lawyers and litigation support teams. Not only are clients more cost conscious than ever based on their own bottom-line considerations—from shareholder value to investor requirements—but the new Federal Rules of Civil Procedure that came into effect in the U.S. in December require a certain budget consciousness to meet proportionality requirements. However, sometimes the skills and information needed to make a reasonable budget estimate are not part of the team’s core competencies. That is when outsourcing and working with a trusted third party become vital.
In my previous article, I looked at some of the basic metrics that can guide budget estimation. The primary cost driver that will define the budget is the volume of data and, concomitantly, the number of documents in the data. In the absence of metrics gained from the data (or a sample) or from previous projects, you can always use rough rules of thumb such as a gigabyte of data being equivalent of 5,000 to 10,000 documents. You can then estimate the degree to which you can reduce the amount of data by removing system files (also known as deNISTing), deduplication and searching. You can then factor in the human element: that is, how long it will take to review the documents, accounting for the complexity of the source material and the review. For a straightforward review of office documents, a typical review rate is 50 to 75 documents per hour, but if you’re dealing with complex media, like chat files or audio, the rate will be slower. Relying on a trusted partner skilled in technology-assisted review can increase speed, but don’t forget to budget for any additional fees.
Even with this frame of reference, there is still a great deal of ambiguity. After all, the best metrics are case specific, and they may not be available if the case has not progressed far. In this situation, extrapolation by sampling—so long as you ensure that the sample is sufficiently large and representative to be valid—can provide a reliable estimate. The downside is that sampling requires carrying out some collection, processing and filtering work, which may incur charges the team might prefer to avoid.
Where sampling is not possible, either because the matter has not progressed far enough or because the uncertainty in the outcome can’t justify the cost, engaging an eDiscovery provider for guidance can be beneficial. If you have established a relationship with a reliable provider, advice on the information required, the factors to consider and the potential costs of an eDiscovery project is likely to be free of charge. Even where there is a cost associated with that advice, it is an investment in knowledge and experience rather than in an uncertain outcome. As eDiscovery providers work on hundreds, if not thousands, of cases a year, in a highly structured workflow environment with formalized documentation requirements, they can provide useful assumptions and models based on their experience to guide the budgeting process with a high degree of accuracy.
In my experience, there’s an art to finding a trusted partner. Here are my three top tips for engaging experts:
1. Price is not everything; look to experience, reliability and project-management skills to guide your decision. An eDiscovery provider with a good reputation for managing its own procedures will be able to guide you better in budget preparation as it will have more accurate data, which will result in fewer mid-matter revisions.
2. Does the provider have wide-ranging technical and practical experience across the areas where you need guidance? For example, if a provider does not have experience with complex file types, it likely won’t have the ability to estimate spend accurately on those aspects of the matter.
3. How well does the provider communicate with your team? Does the provider offer suggestions and engage with your team proactively where they see an opportunity to manage costs, or do they provide only what you ask for? Does the provider’s personnel see the bigger picture and the downstream effects of certain decisions? A creative provider that thinks outside the box to find cost-containment methods is an essential part of your team in an era of proportionality.