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By Lynn Reilly, Esq.

Published on Wed, July 11, 2018

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Until fairly recently, “value” wasn’t really a stated goal of ediscovery. eDiscovery was just an unavoidable expense. Document production was unrelated to the larger goals or substantive work of the litigation. The idea was simply to meet obligations as cheaply as possible, usually by negotiating for the lowest rate for each line item.

As tools have evolved, though, it’s worth rethinking how to manage ediscovery spending. New solutions can actually improve outcomes in litigation--but to gain an advantage, you have to shift your thinking to weigh in both cost and prospective benefit. When is an investment in ediscovery worthwhile? Consider a three-tiered framework from least to most valuable.

Tier 3: Costs

In this category are basic expenses of meeting production obligations, including processing, exception handling, hosting, linear review, redactions, priv logs, and imaging. This work is necessary to handling ESI and has to be done right, but doesn’t add value more broadly. With no advantage to be gained here, the right focus is on cost containment. The goals are to minimize scope and find the most cost-effective solution without compromising quality.

Tier 2: Strategic Investment

A strategic investment represents an additional outlay, but one that mitigates overall project cost by cutting waste. Because document review is by far the most expensive part of ediscovery, it’s worth investing in technology that reduces review cost. This category includes solutions that deliver efficiency gains or improve quality--for example, using TAR to eliminate documents from linear review, email threading, or tools for redaction propagation, native redaction, or privilege logging. To derive value from these tools, weigh up the return on investment. Metrics that inform this analysis might include the number of non-responsive documents eliminated from review, hours of manual work avoided, or privilege review or QC steps obviated.

Tier 1: Value Add

In the highest-value category are modern analytics solutions that do more than promote efficiency--they add value, because they move the dispute closer to resolution. These tools do much more than support the work of identifying and preparing documents for production. Advanced analytics solutions rank documents by predicted relevance. They organize documents by conceptual similarity to give an overview of content and display non-obvious themes. They help isolate key documents before human review. Because these tools surface substantive information about documents, they accelerate fact development, and inform strategy. In addition, they bolster proportionality arguments with real data about burden and reasonable efforts.

Despite the advantages of analytics, these solutions still sometimes get passed over because of the old mindset that ediscovery expenses should be minded and minimized at the line-item level. But, hesitating to use technology because of perceived added cost is an outdated approach to managing ediscovery spending. New tools shouldn’t be evaluated in the same way that we think about fees for processing or imaging. Solutions have evolved and cost/benefit analysis should too. With a shift in your thinking about ediscovery, you stand to not only cut spending but actually realize value in the process.

If you’d like to continue the discussion or have questions about this subject, please contact me at lreilly@lighthouseglobal.com.

About the Author
Lynn Reilly, Esq.

Executive Director, Review Analytics and Consulting Services

Lynn Reilly is the Executive Director of Review Analytics and Consulting Services at Lighthouse. She leads the teams that support analytics, TAR and review.

Prior to joining Lighthouse, Lynn was T-Mobile's Senior Corporate Counsel for eDiscovery. As a member of T-Mobile's Major Litigation Team, she oversaw all aspects of T-Mobile's ediscovery, including setting policies and practices across cases and advising litigation counsel on the law, strategy and tactics of ediscovery.

Lynn has over 25 years of experience as an attorney, including as a commercial litigator with Stoel Rives and as a prosecutor for the City of Seattle. Since 2001, Lynn has focused her legal practice on ediscovery. Lynn practiced for six years in the eDiscovery group at K&L Gates. She also developed the curriculum for and taught the University of Washington’s Continuing and Professional Education certificate program in ediscovery project management.

She holds a J.D. with Honors from the University of Washington School of Law and served a judicial clerkship at the Seventh Circuit Court of Appeals.