Article of Interest

E-Discovery: What It Means to Us
By: Marisa Jeffrey

It’s no secret that the past 10 years have seen an e-discovery explosion.  The formulation of the federal rules on e-discovery in 2006 only papered the obvious:  electronically stored information is the future of complex litigation.  As e-discovery becomes commonplace, the firms are responding. 

The bottom line is that e-discovery is expensive.  One document or communication may be forwarded, manipulated, redistributed, and then sent to a listserv of possible custodians.  The dynamic nature of the information causes a seemingly endless pool of documents to be potentially responsive to a request for production. Chasing down and reviewing all of these documents before putting them in the production line requires a vast amount of technical knowhow and manpower that often sends discovery expenses through the roof.

Studies estimate that document review accounts for 58-90 percent of litigation costs for Fortune 100 companies. As a result, today’s business litigation client demands creative solutions to decrease the enormous cost associated with e-discovery.

Option One: Vendors

Virtually every large-scale case uses some form of artificial intelligence to cull a document set.  Faced with thousands or even millions of responsive documents, keyword searches and predictive coding form the foundation of many e-discovery collections. Some vendors will go one step further and provide document review teams to complete the process.  These teams are typically staffed by temp firms with thousands of lawyers on call at a low rate, with current pay averages around $30 an hour.  With the litigation support industry worth well into the billions in its own right, one-stop-shop e-discovery vendors are becoming more and more common.

Option Two: Outsourcing

Not just outsourcing to a document review vendor, really outsourcing. India is one of the most common destinations for legal outsourcing due to its large English-speaking population and low wages. Legal outsourcing to India alone is expected to be a $4 billion industry by the end of this year.  Several international firms have opened satellite offices in India, solely for the purpose of document review, and the applicant pool to fill these jobs is almost endless. Nearly 70,000 lawyers graduate annually from 500 Indian law schools. The average salary hovers around $10,000 a year as opposed to the six-figure number U.S. associates are accustomed to.  But, there are quality control issues with sending the work abroad, as Indian lawyers are not bound by U.S. ethics codes and do not complete the same training as U.S. attorneys before they receive their degrees.  International outsourcing is still an extremely attractive option, however, to escape the crippling price of completing the review with traditional associates.

Option Three: Taking it In-House

Many large firms are creating entire sections geared toward meeting client demand for e-discovery service at a lower price, while keeping the profits in-house.  Essentially, a firm will form a working document review group, usually comprised of staff attorneys, contract attorneys, and project attorneys.  Each title may carry a different connotation, but all have the same task: review the documents at a lower cost, with elite firm quality.  The firms that have embraced this model have not been disappointed.  The money is coming in, and the clients are staying. 

The Impact on Young Lawyers

What do these trends mean to today’s young lawyer? What e-discovery giveth, e-discovery taketh away. While the scope of discovery (read: work for young lawyers) drastically increased with electronically stored information, the market has responded by lowering costs through unconventional document review sources. Our role is changing.  There will always be a need for partner-track associates to draft briefing, take and defend depositions, and second chair trials. However, the days of billing 10 hours of document review at $450 an hour may be a thing of the past.  Viable alternatives have grabbed clients’ attention and made it impossible for firms to ignore. 

That said, e-discovery is also creating new jobs for young lawyers, different jobs.  Maybe not your standard associate job, but a project manager at an e-discovery vendor or a staff attorney at an in-house review center.  One thing is certain:  e-discovery prowess is already an extremely marketable skill and will most certainly become a required proficiency for the next generation of young lawyers.

Marisa Jeffrey is an associate at Amy Stewart PC, focusing on insurance coverage litigation for the corporate policyholder. Marisa can be reached at marisa@amystewartlaw.com, or via the firm’s website, www.amystewartlaw.com.

This article was originally published by the Dallas Association of Young Lawyers in the March 2015 edition of The Dicta.