Is E-Discovery Too Expensive?
By Tom O'Connor
There was a fascinating thread recently on the Lit Support
ListServ that was started by the following post. “Why is EDD and Data
Processing So Expensive, why can’t IT or my secretary do this? I know that we have all been faced with this
so I am wondering if anyone can point me to a few good references, as I want to
write a document that the average person can read and understand. This will
help from having to explain this 300 times a year.”
The answers have ranged from the comically brief: “It runs
on magic, and magic is expensive.” and “Why should lawyers get to make all
the money?” to a concise and erudite answer posted by George Socha:
“First: ‘Why is EDD and Data Processing So Expensive?’:
Processing ESI can be expensive because consumers demand that the work be done
very quickly and with a high degree of accuracy and reliability, in conditions
where it may well be that at the outset no one knows the scope of the
undertaking or the complexities and challenges to be encountered along the way.
Prices vary greatly, at least in part because processing means many different
things. Prices have dropped considerably; as a result, however, there now is
the danger of consumers paying such a low price that providers end up cutting
too many corners, with a drop in quality that may not be acceptable.”
“Second:
‘Why can’t IT or my secretary do this?’ If IT or your secretary has an acceptable
level of expertise and experience and is provided an acceptable level of resources,
then IT or your secretary can do the work. One is not able or unable to handle
the challenges of dealing with ESI simply because of the name of one¹s employer
or the title of one¹s position. An organization does not magically become
qualified to engage in electronic discovery activities simply be calling itself
an electronic discovery provider, nor is an organization automatically
disqualified simply because it is a law firm or a client. Rather, it is a
question of expertise, experience, resources, and the like.”
But really to me the query seems to beg question, “what is e-discovery”?
Learned commentators such as Ralph Losey and Craig Ball have been tackling that
question for some time now but it would seem to me that anyone who truly
understands the basics of e-discovery knows that the answers to the list serv
post are 1. It isn’t too expensive if done properly and 2. Because you
need special training.
What the question really shows is the complete disdain
attorneys have for issues involving technology and the people who deal with
them. Would that same attorney ask why his
IT or secretary couldn’t draft a Motion for Summary Judgment or a restraining
order? The fact is most attorneys think
if you don’t learn it in law school it isn’t professional and anyone should be
able to do it, which is why first year associates fresh out of law school in
New York or Chicago or LA make 2-3 times much as IT and lit support
professionals with 10-15 years experience.
Think I’m wrong? Read
Craig Balls post of Feb.9 on EDD Update titled What do you call someone who
gets the lowest passing grade on the Bar exam? where he recounts an experience lecturing a
class at the University of Texas Law School on e-discovery. At the conclusion
of the lecture a third year law student asked if he really needed to “ know
this stuff?” After being assured he did
to avoid acts of gross negligence in his practice, did the student ask the best
source of technical information on e-discovery? Of course he didn’t. He asked
“What’s the least I need to know?”
That’s why e-discovery is too expensive. Because the people who
need to know most only bother to learn the least.