This is part two of a two-part series. The first article in this series discussed changes in the e-discovery market, and how these changes drive misinformation and misleading statements from law firms and e-discovery vendors.
“Only an outside provider can do a ‘complete’ identification and collection.” E-discovery vendors promise that they will look everywhere for all the relevant documents. Left to their own devices, many vendors will do an unnecessarily broad collection, creating a large corpus of documents to process and review. At a recent judges conference, some large companies admitted that in some cases they overcollected by a factor of fifty. Discovery vendors run amok are certain to drive up your costs. While your discovery process needs to be defensible, this should be balanced with “reasonable, good faith efforts.” In-house counsel should not hand over the keys to anyone. Rather, they should monitor the process to ensure proper balance and avoid runaway costs. When one large international law firm was confronted with emails purporting to show how its partners were recklessly running up their client’s legal bill, the firm claimed this was only “an unfortunate attempt at humor.” I fail to see the humor. Excessive and overly broad discovery often escapes scrutiny, yet as a tremendous revenue source for law firms it risks abuse.