Is eDiscovery Really Too Expensive?

From my post on this weeks Advanced Discovery blog :

Those of us who work in the eDiscovery profession (and yes it’s a profession, not an industry . . . that’s a personal foible that’s best left for another day’s discussion) are constantly asked why the process is so expensive. A while back, one attorney actually posted in a discussion thread:

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 the concise and erudite answer posted by George Socha:

” ‘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.”

But really to me the query seems to beg question, “what is ediscovery”?  Ralph Losey took a shot at the issue several years ago on his blog, The e-Discovery Team ( ) but it seems to me that anyone who truly understands what e-discovery is would know that the answers to the question (leaving aside the obvious comment that 65-70% of the cost of any e-discovery project is the attorney review, so if e-discovery projects are too expensive, the fault lies with the lawyers’ fees) are:

  1. Because you need special training, and
  2.  It isn’t too expensive if done properly

As to “Why can’t IT or my secretary do this?” If your IT folks or your secretary has an acceptable level of expertise and experience and are provided an acceptable level of resources, then they CAN do the work.One is not able or unable to handle the challenges of dealing with ESI simply because of the name of one’s employer or the title of one’s 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.

What the question really shows is the disdain attorneys tend to have for people with technical training, no matter how experienced or well educated they are. I mean come on now, would that same attorney ask why his IT or secretary couldn’t draft a motion for summary judgement or a restraining order?

The fact is that most attorneys think if you don’t learn it in law school it isn’t professional and anyone should be able to do it. As the dean of one prestigious law school once told Browning Marean and I when we approached him about doing an e-discovery course: “we train architects not carpenters.”

Which is why in New York or Chicago or LA first-year associates fresh out of law school make 2-3 times as much as IT and lit support professionals with 10-15 years’ experience. And why Michael Arkfeld continues to say that 95% of the attorneys in the country don’t understand ediscovery at all.

So is building a house too expensive when you get your inexperienced, unlicensed friends to do it for you? You bet. But get a professional carpenter, know what you’re doing when you negotiate with them, and you’ll get a great house.

The same principle applies here.

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