Pressure Points for Achieving E-Discovery Cost Effectiveness

The technology for identifying duplicate electronic records has been public record since 1992,[1] yet a survey last year of leading e-discovery providers showed that consolidating duplicate electronic records across custodians was done in only half the cases. This caused the volume of records reviewed for relevance or privilege purposes to be 27 percent higher on average than the volume achieved by deduping within individual custodians.[2] Furthermore, the duplicative reviews caused by this approach exposed corporations to risks of sanctions or waiver of privilege because of inconsistent decisions made on different copies of the same records by different reviewers.[3] Duplicate consolidation is a litmus test of sorts for cost effectiveness--if firms aren't using this basic technology, they are most likely not using other proven technologies such as deNISTing, email threading, domain name analysis or concept clustering, technologies that when used together could reduce legal review bills by as much as 90 percent.

While the slow adoption rate could be caused by a lack of technical competence, the role of economics should not be ignored. Jeffrey Carr, VP, General Counsel and Secretary of FMC Technologies Inc., co-authored an article that claimed that when a company spends $100,000 in legal fees with a firm, the relationship partner is personally impacted by at least $35,000.[4] In other words, in the short term a partner that implements the technology to lower review bills by 90 percent would be significantly reducing his or her personal income from that engagement.

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