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    Cost, Time and Complexity in eDiscovery Sourcing

    “Time is money says the proverb, but turn it around and you get a precious truth. Money is time.” George Gissing

    “Fools ignore complexity. Pragmatists suffer it. Some can avoid it. Geniuses remove it.” Alan Perlis

    Balancing the business drivers of cost, time, and complexity in the conduct of electronic discovery continues to be one of the greatest challenges faced by electronic discovery practitioners today.  While there are certainly a myriad of considerations in each of these areas in regard to electronic discovery insourcing and/or outsourcing decisions, provided below is a quick reminder of some of the key elements to entertain when making important sourcing decisions.  

    1)     Cost – The cost of electronic discovery has become such an important factor in litigation that, in some cases, it may actually drive counsel recommendations as much, if not more, than actual evidentiary positions.  Costs range from the specified monetary costs of sourcing the technology and talent necessary to complete needed electronic discovery tasks to the implied opportunity costs associated with tasks and/or projects.

    Costs to be considered in making sourcing decisions for electronic discovery should include:

    • Cost of electronic discovery technology (to include upgrades and maintenance of technology).
    • Cost of IT staff to support and manage electronic discovery technology.
    • Cost of legal professional staff to complete electronic discovery tasks.

    From a purely objective cost perspective, insourcing or outsourcing decisions should adhere to the following general criteria:

    • If cost savings from outsourcing are less than costs of outsourcing, electronic discovery tasks should continue to be insourced.
    • If cost savings from outsourcing equal costs of outsourcing, qualitative factors must be used to make the appropriate decision to insource or outsource electronic discovery.
    • If cost savings from outsourcing are greater than costs of outsourcing, the electronic discovery tasks should be outsourced.

    2)     Time – The ability of legal professionals to manage the time components associated with electronic discovery is of paramount importance if counsel wants to efficiently execute electronic discovery tasks and ensure that tasks are completely compliant with the requirements of audit, investigation, and/or litigation requests.

    Time components to be considered for sourcing electronic discovery should include:

    • Time available to respond to audit, investigation, and/or litigation requirements.
    • Time required to initiate and complete electronic discovery tasks.
    • Time constraints based on technology availability and IT/legal professional staff availability.

    From a purely objective time perspective, insourcing or outsourcing decisions should adhere to the following general criteria:

    • If time savings from outsourcing are less than time expended for supporting outsourcing, electronic discovery tasks should continue to be insourced.
    • If time savings from outsourcing equal time expended for supporting outsourcing, qualitative factors must be used to make the appropriate decision to insource or outsource electronic discovery.
    • If time savings from outsourcing are greater than time expended for outsourcing support, the electronic discovery tasks should be outsourced.

    3)     Complexity – Litigation is inherently rife with risk.  This risk only increases when coupled with the complexity of electronic discovery based on the intricacies of digital data, the continually growing volume of data available, and evolving electronic discovery related law.

    Complexity considerations for sourcing electronic discovery should include:

    • Complexity of risk associated with electronic discovery technology.
    • Complexity of systems and processes required in dealing with electronically stored information.
    • Complexity of expertise needed to execute and manage both electronic discovery technology and tasks.

    From a purely objective complexity perspective, insourcing or outsourcing decisions should adhere to the following general criteria:

    • If complexity from outsourcing is greater than complexity for continued insourcing, electronic discovery tasks should continue to be insourced.
    • If complexity from outsourcing equals the complexity for continued insourcing, qualitative factors must be used to make the appropriate decision to insource or outsource electronic discovery.
    • If complexity from outsourcing is less than complexity for continued insourcing, the electronic discovery tasks should be outsourced.

    While objective decision making criteria can serve as a solid framework for discussing and considering sourcing decisions, subjective criteria (or said another way, experience and intuition) should always be an integral part of all decisions.

    A Blinding Flash of the Obvious

    These decision drivers of cost, time and complexity may appear to be a blinding flash of the obvious to the seasoned and disciplined electronic discovery practitioner.  However, based on the many anecdotes, articles and examples shared daily in both public and private forums, it is apparent that there is always room for careful review and consideration of these drivers as each of them play an important part in the decision by counsel to insource and/or outsource electronic discovery tasks.

     

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