4 Ways to Tackle the “Hidden” Costs of Discovery
Now that we have identified the hidden cost drivers of discovery in our last post, what can we do to remedy them? Turns out, quite a bit. Here are some proven ways you can begin to tackle these hidden cost drivers.
1. Build A Strong Team
Building your team the right way is one of the most important, if not the most important, thing that you can do to ensure that your discovery plan is crafted well and executed efficiently.
There are multiple elements to building the right team, including having a good process for identifying service providers or generating requests for proposal, asking the right questions, and using references to vet performance claims. We will be covering all of these topics in future posts.
For this post we introduce only the idea of our “team building” principles. These are concepts that you should use as a reference point as you build your discovery team. These principles can help guide your questions, shape the structure of the team, and evaluate the written plan and work product of your teams.
These don’t apply to every circumstance and in e-discovery like in most things there are exceptions to every rule, but thinking about these topics will help you internalize sound team-building principles:
- Look for smaller teams. Everything else being equal, a smaller team is better. Smaller teams lead to tighter lines of communication, reducing duplication costs and error costs. Fewer team members means each team member will assimilate a greater amount of institutional knowledge, generating greater efficiency. “Smaller” does not always mean “small”—a very large multi-district litigation matter might need 20 people on a particular task. But if 20 can do the job, then you shouldn’t sign up for 50. Ask anyone pitching you their services how many people will be assigned to handle your matter. If you have multiple providers pitching for the same work, ask them all the same question and compare answers. And don’t be afraid to ask follow-up questions. If a provider’s pitch involves a significantly larger team than others, they should be able to justify it with an explanation. If not, you can focus your attention on the proposals involving smaller, potentially more efficient teams.
- Look for teams experienced with each other. Experience matters. One overlooked but very valuable one is the experience of working with the members of a given team. When you work with other members of a team you gain an invaluable level of experience. These players, in turn, know how to work together, what each other’s strengths and weaknesses are, and how to avoid conflict during heavy work-load periods. The experience of working together can generate enormous efficiency gains in communication—teams that know each other well can communicate more quickly and more comprehensively than teams that have little experience working together. It is crucial to ask your prospective team questions that explore their experience working together in the past. This is not limited to just members of the same team. Have your various service providers worked with one another before? For example, a good, prior working relationship between your discovery counsel and your Big Law firm can help save a lot of cost and guard against inefficiency.
- Look for teams that are stable. In our last post we spoke a lot about the impact turnover on the review team has on a case. This is most acute for large teams of first-pass document reviewers. But it is no less true with large law firms, managed service providers, or any other member of the team. Make sure you are asking your firm or service provider questions about: (1) how long team members have been with them; (2) how likely it is that there will be turnover on the team; and (3) and how they plan to mitigate the cost of any such turnover.
2. Have A Written Assignment Of Tasks
If you really want to reduce costs in a discovery project, it helps to have a written plan. Especially as you build your team. A simple table can help you keep track of tasks and who is responsible for those tasks.
For example, here is a partial series of tasks that come from different portions of a typical case. You can also add a column to help you identify whether you expect any overlap from other providers on these tasks:
|Task||Primary Service Provider||Overlap with Other Service Providers?|
|Negotiate Rule 26(f) Discovery Conference||Big Law Firm||No.|
|Drafting ESI Protocol||Big Law Firm||Very little at most. Maybe slight overlap with managed services team.|
|Draft of Review Memo||Big Law Firm||No.|
|First Pass Review (Responsiveness Review)||Managed Review Provider||Yes. Big Law Firm QC and Questions.|
|First Pass Review (Issues Review)||Managed Review Provider||Yes. Big Law Firm QC and Questions.|
|Second Pass Review||Big Law Firm||No.|
|Final Privilege Calls||Big Law Firm||No.|
|Privilege Log||Big Law Firm||Yes. Vendor will export the log.|
There are dozens of tasks in a case/discovery, way more than we could list in a post like this. If you have managed complex e-discovery projects before, then you could probably generate your own table in less than 30 minutes (and we will share ours with you in a future post). But if you are new to the process and want to test your service providers, ask them to come up with a table for you.
You can also add additional columns depending on how much information you find useful: e.g., what are the expected hours and cost for each task? How many team members are required to complete the task efficiently and effectively? Who is responsible for cost overruns for each task? Are there hidden areas of duplication cost? What sort of approvals does the provider need from you before taking certain actions?
Ultimately, putting names to tasks and assigning them to the team is a powerful way to gain efficiency and reduce the cost of a discovery project.
3. Identify Places Where You Can Substitute Big Law Firm Hours For Specialized, Lower-Cost Service Provider Hours
In our last post we noted that the number one hidden cost in e-discovery is the failure to substitute Big Law hours for equally competent lower-cost providers. Switching from $500/hour to $200/hour for certain tasks makes a big difference to the bottom line of your project.
After you have built the task chart discussed above, add another column and ask yourself whether anyone on your team can handle the tasks you have assigned to Big Law or other parties.
|Task||Primary Service Provider||Substitute Lower-Cost Providers?|
|Negotiate Rule 26(f) Discovery Conference||Big Law Firm||Not completely (although consulting with discovery counsel on this task may identify issues that will result in cost-savings down the road – we will touch upon this in future posts).|
|Drafting ESI Protocol||Big Law Firm||Yes (discovery counsel).|
|Draft of Review Memo||Big Law Firm||Yes (discovery counsel).|
|First Pass Review (Responsiveness Review)||Managed Review Provider||Yes (discovery counsel).|
|First Pass Review (Issues Review)||Managed Review Provider||Yes (discovery counsel).|
|Second Pass Review||Big Law Firm||Yes (discovery counsel).|
|Final Privilege Calls||Big Law Firm||Yes (discovery counsel).|
|Privilege Log||Big Law Firm||Yes (discovery counsel).|
Once you have the tasks laid out you can see where you can meaningfully substitute with no hit to quality. Each case is unique and—depending on the case—it may make sense to substitute a different set of tasks in order to generate maximum efficiency. We recommend undertaking this type of evaluation with every discovery project, collaboratively with your Big Law firm. In many cases, they will want to get out of the grit and grind of these discovery tasks and rely on trusted partners to handle them, thereby enabling the Big Law attorneys to focus on what they do best: the big-picture strategy and tasks more tied to obtaining the best outcome for your case.
4. Make Sure You Have Well-Crafted Engagement Letters That Clearly Define The Scope Of Work
Once you have your tasks well-defined, make sure your engagement letter captures each of these tasks. Making sure everyone is on the same page at the beginning of the engagement will ensure that you (and your service providers) avoid nasty surprises down the road. Surprises that can be expensive and erode trust and confidence. Clear rules of engagement at the outset of the project are paramount to success and lower costs. Here are some things to consider:
- Specifically define, where possible, the discovery tasks that the service provider is expected to handle. If your discovery counsel is going to handle final privilege calls with input from Big Law, make that explicit (for a glossary of terms, see the people primer post from this series).
- If a firm or provider will only provide secondary or oversight support, make sure you include provisions or language saying so. For example, if you have engaged a lower-cost review team to complete an initial review, how can you ensure you don’t get a bill where the Big Law firm handled 70% of the work? Make it clear at the outset that you are not paying for the Big Law firm to row the oar on these primary labor tasks without your prior notice and sign-off. Such clarity can drive huge cost savings and avoid surprises.
Reducing discovery costs requires having a plan. Defining all of the tasks that require attention lets you visualize the work you need to have accomplished. By assigning those tasks to the right members of your team, you can significantly avoid duplication costs and find places where you can substitute out Big Law hours for equally effective but lower-cost hours.