All posts tagged costs

Ediscovery Costs: Pay as you gone?

eDiscovery On-Demand

In today’s no-frills ‘on-demand’ economy, customers apparently want to rent rather than own things. Why commit to purchasing a car when you can order a cab instantaneously? Why take on permanent lawyers in-house when you can hire temps as and when required? And in the ediscovery world, why pay astronomical sums to license technology in-house when you can tender out work to vendors on a project-by-project basis? The way ediscovery technology is bought and sold is a hot topic.

The latter ‘pay as you go via tender’ model has been the preferred modus operandi for most law firms in the UK and Ireland. Many of the firms who have tried to make ediscovery into a ‘profit centre’ by licensing technology in-house have failed to do so. In my experience the reasons for this have included the following:

  • The up-front hardware costs can be enormous;
  • Technology becomes obsolete quickly and law firms are not set up to maintain it;
  • A small team (often only one person) within the firm knows how to operate the technology. The firm therefore becomes overly-reliant on those people; as and when they leave they take the key operational knowledge with them. One firm I deal with has been without a litigation support manager for 2 years and hires external consultants to operate their system on an ad hoc basis;
  • The ‘profit centre’ argument may make sense on paper, but in reality the technology cost is often the first line item to get written off of a client’s bill.

A False Economy?

That said, the tender model is not without its difficulties. Ediscovery is not a taxi service – it is a complex blend of technological and consultative processes which requires matter-specific application. Not to mention time and costs. Associates often spend an inordinate amount of (non-billable) time comparing quotes that seem to require a PhD in Mathematics to comprehend. Even if estimates are put into a standardised format, predicting data volumes can be as kind to the forecaster as predicting the British weather. All of which goes against the maxim that costs in litigation should be both reasonable and predictable.

The reality is that ediscovery is an integral part of the modern litigator’s practice needs. Whilst only some matters proceed to the disclosure stage, the perusal of electronic data is often necessary to assess merits at the outset of a matter. At that stage a client is just about content to invest money in legal advice, let alone to approve a disbursement for technology to enable that advice. Lawyers now need the comfort of an in-house system where they can upload data as and when they please without incurring the stress, time and moreover the uncertainty of a full-blown tender process. Could you imagine having to contact three or four companies every time you needed to conduct some legal research or find a precedent? This has led to forward-thinking law firms pursuing a third option for the procurement of ediscovery services – the subscription model.

Just Sign Here…

A subscription model (aka a Software as a Service model) is a fully-flexible solution which allows you to pay a fixed monthly sum for a certain volume of data to be hosted across an unlimited number of matters. The pricing is set out in ‘bands’ so that you have the flexibility to increase your hosting volume without incurring any extra costs up until you reach the next tier. Each offering is designed bespoke to the client’s needs. The advantages are as follows:

  • There is far greater certainty on costs than under a ‘pay as you go’ model;
  • Lawyers can save significant time and stress by avoiding the tender process;
  • There is a tangible value-add to point your clients to. ‘Innovative’ has become an overused buzzword in law firms’ self-descriptions. Relieving clients of the uncertainty of ediscovery costs and being able to analyse key electronic data immediately when instructed on a matter are strengths to genuinely shout about;
  • There is no need to worry about paying huge up-front sums to invest in technology. Your provider will maintain the hardware and software in their own data centre. Moreover, you will have the ability to host data in any of the provider’s global centres and on any of the review platforms that they offer. I have come across dozens of organisations who are using an outdated review platform purely because at the time they licensed it, it was cutting-edge. As Blackberry has discovered, 5 years is a long time in business;
  • You can build a relationship with people at the provider, and set in motion a style of working that suits your firm, so that you receive a consistent, repeatable service. There is also no concern about an over-reliance on one person at your firm; some of our project managers are considered by their clients as extensions of the legal team.
  • You can decide how to bill your clients for ediscovery services.

How much does it cost?

Naturally, firms will be concerned that a subscription model is only suitable for those firms with the deepest pockets. That is simply not the case. Rather than focusing on costs, you are advised to approach vendors with a ‘wish-list’ of services and a budget in mind (it may be the last time you need to contact more than one provider). We have law firms who are able to service their clients’ needs with a spend of around £10,000 per annum. Small change for speed, reliability, and a competitive advantage.

Time to get off the app and into the driving seat.

About Hitesh Chowdhry

Hitesh Chowdhry joined Kroll Ontrack’s London office in July 2014. He sits as a consultant within the Electronic Evidence Consultancy team, advising lawyers and their clients on how to effectively manage electronically stored documents in litigation, arbitration, and internal or regulatory investigations. Hitesh studied law up to Master’s level at Kings College, London. He trained as a solicitor at City firm Penningtons LLP, and qualified into the litigation department there in 2008. Hitesh moved on to join the Treasury Solicitor’s Department in 2010, where he acted on behalf of the Home Secretary in human rights claims. Prior to joining Kroll Ontrack, Hitesh spent one year working as a document review lawyer at various US firms in the City of London. Hitesh is currently studying an Executive MBA at the Cass Business School, London.

Warm up to unbundling

Bundle Up - Document Review

The winter chill has enveloped the countryside; yet, I find myself unbundling . . . apparently, I’m not alone.

With increased focus on costs and budgeting and with some studies showing the review of documents topping 70% of total spend for discovery/disclosure, it’s no wonder that companies and law firms are looking for ways to reduce review expenditures whilst maintaining quality in this new economic reality.

One method frequently cited is predictive coding. Predictive coding enables dramatic cost savings over traditional linear review. Our clients have taken notice, and now a majority are using some level of predictive coding on their matters.

This should not imply that linear review is entirely replaceable. After properly scoping and collaborating with our clients, we often recommend linear review in coordination with predictive coding and other advanced tools.

Understanding the high spend for traditional linear review, our clients asked us to develop a more cost-effective way of conducting reviews. Building on our tradition of excellence in the U.S., we brought our Managed Review Services to Europe paying particular attention to the unique challenges posed by the differing legal systems, data privacy laws and regulations, cultures, and languages. We took a fresh look at how holistic reporting could lead to in-project review efficiency gains, we established standardised yet flexible quality control procedures to support a high-level of review accuracy, and we leveraged the expertise of our entire Kroll Ontrack team to provide a seamless experience across the EDRM.

We’ve previously written about our Managed Review Services (here, here, and here), and for the last several months, we’ve received tremendous feedback from our clients. A key reason for this success is our focus on professionalism, quality-of-life, and merit-based retention for the review lawyers. Here are a few of their comments:

‘It has been a real enjoyment to work with Kroll Ontrack.’

‘So far I have highly appreciated the cooperation with Kroll Ontrack based on transparency and trust. Your promise from the very first day of the review has been met. This gives you a good competitive advantage compared to the other agencies I have worked with for the past two years.’

‘The meet-and-greet event was a wonderful experience; it was great to get in touch with the management team and to meet other colleagues.’

‘I have to say you are the nicest team in the business, and I wish Kroll Ontrack every success!’

We would be delighted for you to discover our new Managed Review Centre located inside our warm and toasty European headquarters in central London, so please reach out to us at docreview@krollontrack.co.uk, and make sure you unbundle-up out there!

About Jeff Shapiro

Jeff joined Kroll Ontrack in July 2013, working as a Case Manager within the Legal Technologies practice group. In October 2014, Jeff was promoted to the newly created role of Managed Services Consultant. He provides end-to-end project management and consultancy for ediscovery and edisclosure clients, with emphasis on Fortune 500 companies, as well as Am Law 200 and Global 100 law firms. Jeff ensures that projects are carried out to the highest possible standards, within relevant timelines, and to the specification and cost as agreed with the client. He consults on the technical requirements of Civil Procedure Rules and practice direction, including disclosure forms, production formats, predictive coding, and Case Management Conference planning. Jeff specializes in commercial litigation, regulatory commission requests, and internal investigations, with emphasis on early case assessment and review strategy. Whilst with Kroll Ontrack, Jeff developed a ‘Case Management Manual’ to capture and consolidate existing procedures, document unwritten knowledge, and identify cost-efficient opportunities to enable a consistent and high-level of service to clients. Prior to moving to the UK and joining Kroll Ontrack, he worked for several years with leading law firms in their international ediscovery practice groups. Jeff received his Juris Doctorate from The Syracuse University College of Law, and he is licensed to practice law in the State of Virginia.

Fully flexible with text-only

Let’s skip the scoping calls, collections and meetings for this blog post; our starting point is a database filled with tens of thousands of files and the document review is about to commence. The data processing, which takes up most of the initial costs, already happened. The next expenditure on technology that clients will encounter is hosting costs and although they look smaller than the processing costs, these costs are not to be underestimated. If the investigation takes a month or two longer than expected; more often than not the hosting fees will catch up on the initial processing fees.

This can change now.

In a database each document can be uploaded in three different formats; text, native and tiff image. Each format provides the reviewer with a unique set of tools such as machine translation, predictive coding, redactions and the ability to create productions. These three formats all contribute to the total volume of hosted data and thus to hosting costs.

Data Volumes

Data volumes

As stated above each document format brings something unique to the table, but these tools are not always needed, especially in the early phases of a document review. Clients often have to collect large amounts of data to ensure critical information is not left out. The next step is to cull the data as much as possible. Redactions and productions are not needed at this point in time and the text-only format will give the reviewer all the information and tools needed in order to establish if a document is relevant or not. During this initial phase of the investigation the native and tiff images sit there in the database taking up server space and increase the hosting costs unnecessarily.

Kroll Ontrack now offers its clients a more flexible approach. Clients can choose to initially upload only the text format when setting up a database. This will drastically decrease the hosting volumes and thus the hosting costs. In a later stage of the review and native or tiff image formats are needed, they can be requested on the fly within the database. The result is that clients will only pay for the documents and formats they are actually using.

About Jasper van Dooren

Jasper is part of the Electronic Evidence Consultancy team, which provides scoping consultancy and advice to potential clients in ediscovery or computer forensics matters. He also assists clients by providing demonstrations, presentations, documentation and advice before and during project engagements to ensure that expectations and legal requirements are being met. Jasper graduated from Utrecht University, Netherlands, with a Master’s degree in Private law before moving to London.

Happy Anniversary, Jackson Reforms!

The Jackson Reforms

Anniversaries provide a chance for reflection. Whether it’s reminiscing about 40 years with a loved one or remembering that first kiss, reflection is always important. Why? We know intuitively that we learn from experience and from our mistakes so that we can improve ourselves and our relationships.

In a far less romantic setting, the world of edisclosure is celebrating the first anniversary of the Jackson reforms in civil litigation. Reflection was just as important at our breakfast seminar last week, jointly hosted with law firm Hill Dickinson LLP. The theme: what were the biggest impacts of the Jackson reforms a year on from implementation? An impressive panel included His Honour Judge Davies (Manchester Technology and Construction Court), His Honour Judge Bird (Manchester Mercantile Court), Damian Murphy (Barrister, Indicium Chambers) and Geraldine Ryan (Partner – Head of Commercial Litigation Hill Dickinson LLP).

First, the panellists were quick to concede the fact that early predictions on the biggest impacts of Jackson had not held true. Painful early cost budgeting and the handling of cost management in cases were favourites as hot topics a year ago.  Instead, the panel concluded that fear and uncertainty had crept in concerning sanctions for non-compliance with the new rules. Mitchell, of course, had a big part to play here and in reality what the panel have seen is an increase in, often hard-fought, applications for relief from sanction taking up the courts’ time.

Inevitably the discussion quickly moved to what has happened post-Mitchell, concluding that courts are continuing to take  a tougher line on compliance with the new rules. The Judges were satisfied that clear guidance had been provided from the Court of Appeal on how to handle Jackson and the overarching advice for lawyers was to keep on top of schedules, deadlines and more importantly if extensions are needed, to get requests for them in early.

That said, cost budgeting was still a strong topic for discussion and very much seen in a positive light. From the lawyers in the room we heard that cost budgeting brought attention and focus to their clients much earlier in litigation and a better understanding for what they were getting themselves into, especially when considering the methods and costs of disclosure. As a welcome result, the courts have seen an increase in mediation and will always encourage it in order to save on costs.

At last, one prediction that did come true, but was likened to predicting rain in Manchester, was that parties were unlikely to stray from standard disclosure. We have seen little evidence of parties using any of the other options in Jackson’s menu for disclosure. This might be a simple reluctance to change and the view that standard disclosure is the most appropriate method, or perhaps it’s the fear that ‘smoking gun’ evidence would be missed by using other options.

As first anniversaries go, this was certainly an exciting one. Was the intention of Lord Justice Jackson to instil fear and uncertainty into an already complex litigation process?  I think not; it was always the aim to provide direction and focus to the real issues of the case. We are still waiting for the dust to settle on the new rules, but like in any relationship there are bound to be ups and downs along the way.

We will shortly be launching the European version of ediscovery.com, which will have full coverage of all of the UK case law relevant to disclosure, from Mitchell and beyond, in addition to many other European ediscovery resources.  Stay tuned to this blog for more information on the site in coming weeks.

About Graham Jackson

As a Legal Consultant at Kroll Ontrack, I promote our computer forensic and ediscovery services to both corporate companies and law firms. This is to support any form of their electronic evidence needs, whether that is advising our clients to help prepare in advance of an electronic incident occurring, a real time incident such as data theft, or advise on the best course of action in dealing with post incident response to better protect against future occurrence.

Back to Basics – Dealing with the Data

Back to Basics - Data

In my previous post I looked at the planning that is needed prior to any potential edisclosure exercise to gain an understanding of what may be required to gather the data.  Once the data has been collected, there are still many questions that need to be asked and answered to enable you to determine your budget and plan your review.  This post will consider some of the steps that can be taken to keep control of costs and plan your review of the documents.

For example, let’s imagine you have collected 30 gigabytes (GB) of data from 10 custodians, with a mixture of emails and documents.  What does that mean in terms of the number of documents that will need to be reviewed by lawyers?  Typically the volume of data or the number of GB is used to estimate the number of documents based on industry averages. The first thing to consider is data expansion, particularly if emails have been collected as .pst files.  A .pst file is basically a storage file associated with Microsoft Outlook emails.  Emails are compressed into a .pst file so they take up less space, but when the data is processed so that it can be loaded into a document review tool, the emails decompress to their original size, often resulting in a higher GB count.  We have seen .pst files expand more than 4 times during processing.  However, for this example, let’s say the total volume of data increases to 50GB.  Depending on the nature of the documents, there could be 5,000 – 10,000 documents per GB, resulting in 250,000 – 500,000 documents.  Using our document review platform, Ontrack Inview, we would expect reviewers to read on average over 50 documents per hour, so you could be looking at 10,000 hours of review.  This may be great for your billings as a lawyer, but I suspect it is unlikely to match your budget, or the need for proportionality!

There are various steps that you can take to reduce the number of documents that end up in your document review set.  Filtering the data generally involves applying keyword searches.  You can also filter the data by custodian or specific date ranges, and/or any other document properties which are available and removing irrelevant file types such as system files.  Your keyword list needs to be carefully thought out though, as keywords that are too generic will have minimal effect, and too few or too specific keywords could risk relevant documents not passing through the filter and being excluded from the document review set.  You also need to bear in mind that key word filtering may be ineffective with spreadsheets, pictures and drawings.  It can be helpful to test the effectiveness of your key words on a subset of the data, and we can certainly assist in that process.  If you plan to use predictive coding, where the document review software learns from human reviewers and automatically codes the documents as relevant, there is a suggestion that no keyword filtering should be applied, but that discussion is for another day.

In a litigation matter, the scope of the filtering should be agreed by the parties. Should the parties disagree, the court can make an order before disclosure starts.  In Digicel (St. Lucia) Limited and others v Cable & Wireless Plc and others [2008] EWHC 2522 (Ch), the court was critical of the parties’ solicitors deciding the search terms without consulting each other:

“[The Defendants] did not discuss the issues that might arise regarding searches for electronic documents and they used key word searches which they had not agreed in advance or attempted to agree in advance with the Claimants.  The result is that the unilateral decisions made by the Defendants’ solicitors are now under challenge and need to be scrutinised by the Court. If the Court takes the view that the Defendants’ solicitors’ key word searches were inadequate when they were first carried out and that a wider search should have been carried out, the Defendants’ solicitors’ unilateral action has exposed the Defendants to the risk that the Court may require the exercise of searching to be done a second time, with the overall cost of two searches being significantly higher than the cost of a wider search carried out on the first occasion.”

A further reduction of the data can be achieved by reducing the number of duplicate documents.  De-duplication can be applied, either to each individual custodian’s data, or across all the data to remove duplicate documents.  In some cases it will be sufficient to keep only one copy of key documents in the review database and remove all other copies, but in other cases such as fraud matter, it will be important to keep the copies to show who had knowledge of what.

If you have key custodians, you should consider processing their data in order of priority.  That way your highest priority custodian’s data will de-duplicate first with the least de-duplication, the next custodian’s data will be de-duplicated against the first custodian’s data, and so on, ideally resulting in your lowest priority custodian having the least data.  You should be aware though that not all duplicates are removed during this process; for instance, where the same document is attached to different emails, it will not be removed to allow you to review the attachment in the context of the email.

Making mistakes with filtering and de-duplication can result in potentially costly consequences, perhaps best highlighted in West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC).   In this case documents were not collected properly and some were missing.  Additionally, there were problems experienced with the quality of OCR, de-duplication, inconsistent redactions and the out-sourced review.   The Judge readily accepted that disclosure in complex international construction projects is difficult, but he was persuaded that errors were made and the claimant’s disclosure did cause additional problems which wasted time and costs.  He ordered the claimant to pay the wasted costs caused by the de-duplication failings and the inconsistent redactions and the wasted costs of a disrupted and prolonged disclosure exercise.  Working closely with your edisclosure partner as early as possible, can ensure that all the steps you have taken to reduce the data are defensible.

Filtering and de-duplication planned well can have a dramatic effect on the number of documents that need to be reviewed, which in turn impacts on your budget.  We frequently see the volume of data reduced by 40 – 60% through filtering and de-duplication.  To put this in perspective, if we return to our original example, this would result in 250,000 – 500,000 documents being reduced to 100,000 – 200,000.  With tight budgets, and frequently tight deadlines, spending time determining the most appropriate way to reduce your data will be time well spent.

Money, Money, Money

As everyone knows, businesses are becoming more and more focused on controlling expenditure due to both sound business practice and the general economic downturn. The cost management regime in the UK courts puts additional emphasis on the need to set and adhere to budgets for parties involved in  litigation. In a regulatory context, corporates often see the benefits of carrying out pro-active compliance audits but can be put off from reviewing electronic documents due to (sometimes misplaced) concerns about escalating costs.

I have worked in the edisclosure business for 9 years now and can tell you that there are three main areas in which edisclosure pricing is generally criticised: it is considered to be too expensive and/or too unpredictable and/or too difficult to understand. Add to that the difficulty in accurately comparing pricing from different suppliers and you have a nightmare scenario for law firms and their clients.

At Kroll Ontrack, we recognise these concerns and have introduced new pricing models with the overriding aim of simplifying and providing certainty to clients for edisclosure costs. These models help not only our clients who need our assistance on individual matters but also those who are looking to outsource all of their edisclosure projects  for a fixed monthly fee.

In response to these pricing models, Mark Surguy, partner at Eversheds has commented as follows: “The significant volume of corporate data, the new civil procedure rules on costs budgeting and the difficult economy have put e-disclosure costs in the limelight. Kroll’s innovation in addressing the issue is exactly the kind of flexibility we need to get these projects executed commercially.”

For more information on these pricing models please contact us to discuss them

Next week, Graham Jackson will be writing a blog post on data breaches. You can see a preview below.

Andrew Szczech, Sales Director, Legal Technologies

About Andrew Szczech

Andrew Szczech, Director of Legal Technologies Services, EMEA, is responsible for the business development of Kroll Ontrack's legal technologies business in Europe, focussing on the provision of electronic evidence services to law firms and corporates. These services include e-discovery, computer forensics and consulting which are provided in order to assist clients in multiple practice areas including dispute resolution and antitrust. Frequently, there is a need for solutions to address complex cross border data protection challenges. Andrew also manages the growth and development of global accounts throughout Europe.