Lower your legal operation costs by owning your data and applying common sense
by Daniel B. Garrie
Supreme Court Associate Justice Stephen Breyer, once expressed concern that, with ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the litigation system a lot of people who ought to be there” so that “justice is determined by wealth, not by the merits of the case.” While the common American citizen arguably will be priced out of the justice system, I think that many corporations both big and small face similar problems.
The costs of discovery are high and technology might lower some of the costs, but the real solution requires action before litigation. A real solution mandates that companies control the information they create and responsibly manage it from inception to termination. Most companies lack strong information management process and underlying technologies. Corporations that have the technology and process still must transform the behavior of the employee.
What do I mean? Well, if an employee has no reason to think before sending an e-mail, why would they think? Imagine, if you audited a dozen (12) of your employees for compliance with the signed digital information management policies set-forth in your handbook and then circulate an e-mail firm wide stating that x%, which I would wager that over 50% failed, you would see a direct connection made between what I send and my job. It seems to me that it is not really the legal system that is growing out of control, but rather the ancillary costs around litigation are making it so costly, which are driven in part by a failure to take information management responsibility.
Organizations that calculate the total cost of review per-litigation matter, I believe will realize rapidly that the legal operation costs fall largely in having to manage the deluge of digital information. Hopefully, this realization sets off a chain reaction where they realize that less information equals less costs, and begin to actively engage technology, legal, business, and risk stakeholders to come up with a pragmatic solution. What is a good business reason to pay a third-party company to search, preserve, and produce information that your IT team maintains, secures, stores, and manages on a daily basis? Run the numbers! What if you had less information to review? What if you had an internal team to search, preserve, and produce the information to outside counsel? Calculate these savings internal to your company.
Of course, the average litigant seeking justice confront serious fiscal imbalance any time they are looking at litigation, and these additional costs certainly will not make it any more equitable.
* This is an abridged version of an article ” written by Daniel Garrie and published in the Los Angeles Daily Journal.
** Mr. Garrie is lawyer, discovery referee, forensic neutral, and technologist. Mr. Garrie is recognized as one of the eminent thought leaders in electronic discovery. Mr. Garrie is a managing partner at Law & Forensics, a national legal risk management consulting firm, and serves as an e-discovery arbitrator and special master all over the United States. He has also held technology positions in both the private and public sector. He can be reached at firstname.lastname@example.org.