In e-Discovery, courts, attorneys, e-Discovery consultants, and other industry veterans emphatically deliberate proportionality and predictive coding as major apparatuses for reducing e-Discovery costs. First, Rule 26 – “duty to disclose; general provisions governing discovery” of FRCP encompasses, in entirety, matters relating to initial disclosure, time, scope and limits, pretrial disclosure, limitations, parties conference, sanctions, etc., In other words, the legislative intention behind Rule 26 is to ensure and streamline e-Discovery governance matters.
Secondly, e-Discovery costs can easily escalate to millions of dollars. For instance, on average a Gigabyte (GB) contains 15,000 documents. An average collection of 50 GB entails 750,000 documents which need to be sifted through for relevant details pertaining to specifics of case for defensibility purposes. To give you an idea in terms of costs, reviewing those documents could cost as high as $2 per document or 1.5 million dollars! If 60% were culled down using technology assisted review (TAR), costs would still be as high as $600,000 dollars! E-Discovery budget calculators can be found here.
Here’s the catch! These 750,000 documents are culled down in order to identify potentially relevant documents. The traditional e-Discovery approach is to process all data to TIFF or native for full linear review, whereas, newest and advanced method entails indexing, culling, legal first pass review, and process data for review. With the advent of ‘Big Data’ technology introduced (TAR) or predictive coding as a tool for handling e-Discovery in an efficient cost effective manner.
Statistics plays a pivotal role in TAR, and courts have endorsed usage of TAR in one way or other. However, there may be pitfalls as I explained in one of my earlier posts relating to the limitations of precision and recall in TAR.
Has our justice system become dependent on technology?
Technology is great, however, it must strictly be used as a tool in aid to the due-process of law. As an attorney, I would argue against our justice system’s inclination towards dependability on technology. There are other ways to reduce costs such as global talent acquisition, outsourcing, dual-shoring, offshoring etc., and numerous law firms and corporations have adopted such business models, documenting additional 60% reduction in e-Discovery costs. While reduction in e-Discovery costs are essential, the opportunity cost may undermine defensibility.
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