The current issue of the ACC Docket contains an 11-page article, “Ethics and Ediscovery Review,” by Patrick Oot, Anne Kershaw and me. The article discusses the economic and ethical consequences of what might hitherto have been dismissed as an obscure technical point by many senior trial lawyers: the difference between consolidating duplicate electronic records just within the records of a single custodian versus consolidating duplicates across all custodians. The article is based on a survey of leading e-discovery providers that showed that consolidating duplicate electronic records across custodians results in, on average, a reduction of the volume of e-discovery by 38% vs. only 21% for within-custodian deduping. Assuming review costs are proportional to volume, that means that a firm that doesn’t use across-custodian deduping will bill, on average, 27% more than necessary for reviewing e-discovery prior to production.
The same survey reported that consolidating duplicates across custodians is only done in about half the cases despite the fact that all of the vendors offered that capability. The article examines the ethical consequences of not consolidating duplicates in light of various rules from the ABA Model Rules of Professional Responsibility including those relating to competence (1.1), diligence (1.3), fees(1.5), confidentiality (1.6), expediting litigation (3.2), candor towards the tribunal (3.3) and truthfulness in statements to others (4.1).
The article should be read in the broader context in which the ACC, through its Value Index, is providing the mechanism for corporations to rank their law firms on such things as “efficiency/process management” and “results delivered/execution” and in which it the ACC is actively encouraging its members to go to alternative fee arrangements in lieu of straight hourly billing. That broader context also includes a significant trend of corporate insourcing of much of e-discovery as shown in multiple surveys like those conducted by Fulbright & Jaworski, BTI Consulting, ACC-Serengeti , and Hildebrandt.
The real significance of the article may lie not so much in its content as the fact that the ACC gave it 11 pages in its primary publication and announced it on the cover of the magazine. The ACC obviously thinks the issues of technical competence and review efficiency are important – hence it’s probably a good idea for lawyers who like the business of ACC members to get up to speed in identifying and using technologies that let them do the most efficient job of handling corporate discovery.
Where to start? The eDiscovery Institute website (www.ediscoveryinstitute.org) has a reprint of the ACC article which includes a technical competency quiz. Take the quiz and see how well you score. You could use the quiz and the ideas in the article as a beginning point in assessing your own processes.
My thanks to Chris Cotton of Shook Hardy & Bacon for inviting me to make a posting about the ACC article.