Those old enough to have watched TV in the early ’80s will undoubtedly remember the FRAM oil commercial in which the mechanic utters his iconic catchphrase: "You can pay me now, or pay me later." The gist of the vintage ad was that the customer could either pay a small sum now to replace his oil filter, or a far greater sum later to replace the car’s entire engine.
This “pay me now/pay me later” scenario perplexes many of today’s organizations as they try to effectively govern (understand, discover and retain) electronically stored information (ESI). The challenge is similar to the oil filter conundrum, in that companies can make rather modest upfront retention/deletion decisions in order to prevent monumental, downstream e-discovery charges.
If review rates are near their theoretical maximum, then the only other way to impact the per-gigabyte document review calculation is to decrease the labor rates for the review task. This too is unlikely to produce any demonstrable gains. According to the RAND survey, “the rates currently paid to such project attorneys during large-scale reviews in the United States may well have bottomed out, with further reductions of any significant size unlikely.”
Accordingly, the legal community is likely stuck with something on the range of the $18,000 per gigabyte metric for human-based document review. Given that data is doubling every 18 months, there are only two foreseeable ways to address the oncoming onslaught of e-discovery costs.