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Asking the Right Questions Can Make All the Difference

Posted 05/27/15 8:56 PM by Ed Fiducia

I grew up in Connecticut. When I was 12 years old, I started to “work” for Doctor and Mrs. Wilcox, a retired couple in their 70’s who lived down the street. I would shovel the driveway in winter, plant the garden in spring, mow the lawn in summer and rake leaves in the fall. They were wonderful people who made me feel like an adopted son. I worked for them right up to the day I left for the Marines, where I learned a valuable life lesson that I want to share with you. One summer, Mrs. Wilcox wanted a low area in the yard leveled in, so she had a “load” of fill dirt delivered. The pile was taller than I was. I began to move the dirt one shovelful at a time from the top of the pile to the low area in the yard. A few hours (and blisters) later, she took pity on me and called in a local handyman, named Joe. Within minutes of showing up, Joe asked me two very important questions:

  1. Why are you climbing to the top of the pile to shovel instead of shoveling from the bottom? After all, if you just shovel from the bottom, gravity will cause the dirt to fall to you.
  2. WHERE IS YOUR WHEELBARROW?

I invite you to read Chicago Lawyer Magazine’s Legal Technology Update 2015. In it, you will find Tom O’Connor’s “Eighth Annual ediscovery Survey Response Analysis” starting on Page 17. As evidenced by the title, Tom, who is a nationally known eDiscovery expert, speaker, consultant, and writer, is again publishing the results of his annual survey. The survey contains a lot of solid, unbiased information. 

Of particular note to me is the section titled “How Much is That Case Worth?” Note that there is a big increase in matters involving eDiscovery that are valued under $100,000 and/or are in Circuit Court rather than Federal Court. This is a trend that will continue to gain momentum. This is a shift that translates to a need for more ESI work on smaller and smaller cases. These cases can be huge opportunities for corporate clients to dip their toes into the eDiscovery pool while minimizing risk.  If you learn the ropes on a case worth $50,000, then when the case worth $5 Million hits, you already know what, and what not to do.

After reading and digesting the survey results, I re-focused my attention on the last question of the survey and its accompanying graph: “What do you think is the most important issue regarding eDiscovery?”

Sure enough, price is the top of the list. I’m glad to see that technical competence is now in 2nd place. Look at the chart again. Note that “Review Expenses” finishes a distant third and is only slightly higher than Collection or Processing costs. We know that cost of review averages 75% - 80% of eDiscovery spend. If it is far and away the biggest expenditure, then why isn’t it far and away the most important issue?

BECAUSE ALMOST ALL OF THE RESPONDENTS WORK IN LAW FIRMS. 

Does this mean that simply because one works in a law firm they are somehow “wrong”? Of course not! It’s just that it is virtually impossible for an attorney to see that the most important issue is the cost of review because it’s how they do their job. It’s what they learned in law school. It’s how they paid their dues as Junior Associates. Surely, there is nothing wrong with their business model; it’s how they make their living. After all, this model has worked for decades, right? “Eyeballs on everything” is the safest route to take, even if the costs are high.

Then, I put myself into the shoes of an average in-house Counsel reading this survey. Sure enough, the survey echoes what GCs hear every day from outside counsel: the best way to reduce costs is to reduce the per unit prices charged by vendors. The average corporate GC never hears about reducing costs by reducing the amount of work that outside counsel does. It’s just not on the radar.

So, corporate purchasing departments send out RFI requests and reverse auction (aka bidding war) requests, all built around the hope that the lowest cost, commodity priced solution will carry the day to save the company money by reducing what is already only 20% to $25% of the litigation spend. Why are they expending all of this effort? Because they don’t know that their biggest problem is review cost; this may be the first time that they’re hearing it.

At Inventus, we know from experience just how valuable our expertise can be. We understand that the best solution will help our clients reduce cost and risk. How do we do this? We reduce the size of the universe of documents that have to be reviewed in the first place. Then, we make the review more efficient by streamlining the workflows.

Ask the right questions. Do less work. Get better results. Shovel at the bottom. Use the wheelbarrow.

Demo Inventus Luminosity, an industry-leading discovery management platform in Relativity

 

Ed Fiducia

About The Author

Ed Fiducia - Regional Vice President and Senior E-Discovery Consultant Throughout his 21-year career in the legal technology space, Ed has been a technology expert while also possessing a solid understanding of the legal discovery process – a rare combination. Beginning with document coding in the early 90’s, through the evolution of database creation, e-discovery, hosted applications and concept search technologies, Ed has worked in virtually every aspect of the industry. Ed currently works with Inventus clients and the whole Project Management team to customize review workflows and determine appropriate e-discovery solutions from both a technology and Discovery Management standpoint.

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