Discovery is frequently the most expensive part of any litigation. Discovery is expensive because companies have a lot of documents. Companies now have more documents than ever before because of advances in electronic communication and data storage. Documents are created, on e-mail and in e-mail attachments, in cases where no document would have existed before. And documents are stored without concerns about physical storage space. Documents are more likely kept on flash drives, on shared network drives, and in e-mail folders, in an amount of space that is negligible compared with the amount of space an equivalent amount of information stored on paper would occupy. From a business perspective, these changes are positive — they have allowed for the storage of a great deal more information at a much smaller cost. From an in-house attorney’s perspective, this avalanche of electronic information is the reason why this year’s litigation budget cannot be met.
Inside and outside counsel can and should actively seek to lessen the burden associated with these large quantities of electronic documents by agreeing to reasonable limits on discovery — but if the parties were so reasonable that they could easily resolve such issues, they might not be in litigation in the first place. Further, while companies should have solid document retention policies, even when such policies are in place, they often cannot address the circumstances that many companies find themselves in: heading into litigation with a vast number of documents that need to be reviewed and processed.
So, what is a litigator to do? In-house attorneys and their outside counsel are increasingly utilizing contract attorneys. This may seem surprising since these large document cases tend to be the types of significant matters that in-house counsel traditionally direct to large national firms. The significance of the matter, however, does not mean that there can be no role for contract attorneys. Contract attorneys can do a "first pass" document review1, particularly of electronic documents, at an hourly rate that is significantly below what national firms charge for first-year attorney time. Even adding in the cost associated with a national firm’s training, supervising, and quality checking the contract attorneys’ work, the overall cost of first pass document review can be significantly lessened. And from in-house counsel’s perspective, its client gets the best of both worlds — litigation performed by a top notch firm, at a substantially reduced cost.
Along with the benefits, there are risks associated with using contract attorneys — they tend, as to group, to be less qualified than the attorneys normally employed by the larger national firms. And they, like everyone else, can make a mistake in determining what documents are relevant, important, and privileged. Regardless of outside counsel’s efforts in training, supervision, and in performing targeted quality checks, those mistakes can make their way into the final production set.
Business people, however, make cost/benefit or risk/reward decisions every day. Some may rationally and correctly choose to use contract attorneys on certain matters or on certain document sets. Either way, inside and outside counsel serve their clients best when they provide information that allows for an informed choice, and when they remain flexible and focused on their client’s true interest — achieving the best possible result at the lowest possible overall cost.
Footnote
1. First pass document review is a review of client documents for responsiveness and for privilege. It also includes a "first pass" review of documents produced by a litigation opponent, and can involve some substantive coding. It is not meant to be a substitute for the more substantive document review of a client’s or its opponent’s relevant documents, which is usually conducted on a more targeted basis by the outside lawyers who will try the case.
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