With the slogan "you press the button, we do the rest," George Eastman put the first simple camera into the hands of consumers in 1888.  In doing so, he made a cumbersome and complicated process easy to use and accessible to nearly everyone.  Eastman also recognized that the market for cameras and film was limited to the few who were technically savvy enough to do their own photo development.  He realized that lower prices at much higher volumes would be the key to Kodak's success.  His solution was to allow customers to mail in their exposed film, sometimes right in the camera or stop by the corner drug store that had the automated developing equipment.  What Eastman did was to commoditize the photography industry by making it "as convenient as the pencil."

Future success in the electronic discovery market may be tied to a similar strategy for commoditization of EDD products.  It requires that we look at electronic discovery just as Eastman looked at photography and ask whether potential users are savvy enough to handle the technology.

For corporations or service providers that carry a large IT staff, or even for some large law firms, the answer may be yes.  However, for the small and mid-size law firms, the cost to deploy an in-house solution is far too high and the technology is far too complex.  For law firms of this size, where a large case might be 20,000 to 30,000 documents, the use of service providers is often not the answer due to tremendous variability in fees and the low priority that may be given to processing smaller jobs.

With the recent updates to the Federal Rules of Civil Procedure (FRCP), electronic discovery has been forced into the main stream.  Television, newspapers and other media have had feature stories about the potential impact of these rules, particularly in the workplace.  This has raised public awareness and expectations as well as increased demand for electronic discovery services by law firms of all sizes.

The FRCP do not distinguish between case or law firm size.  Small and mid-sized firms need to find ways to offer these services at competitive rates in a manner that will allow them to compete with firms that do have the means to support this very complex technology.  Within this demographic, commoditization of electronic discovery services is becoming an absolute necessity.

As products become a commodity, prices tend to go down while volumes go up.  In order for EDD products to become a commodity, they must meet the needs of a broad range of nontechnical users.  Can the market for electronic discovery products follow the same commoditization path as photography?

Small Firm Market Drivers
Small and mid-sized firm litigators are under increasing pressure to quickly identify, collect, search and cull the evidence without the need to be technically savvy about how the evidence was processed.  In addition, they must accomplish this reliably in a short period of time for a fixed, reasonable fee that can be estimated accurately and billed to the client.  The ability to view the evidence quickly in order to rapidly establish a legal strategy is critical.  Litigators need to focus on their case; they don't necessarily need an understanding of what metadata is used for.  As one litigator stated "To know how to drive a car, I don't have to know the firing order of the pistons." 

A Common Litigation Scenario
A small to mid-size firm might be hired to represent a client who feels he or she has been wrongfully dismissed from a job.  A case is filed, and the paper and electronic records from the employee's former supervisor become part of the discovery.  Copying the data from the original hard drive in a forensically sound manner can be a challenging collection issue today, the requirements of which are barely understood by many of these firms.  Average volumes may run 10,000 to 20,000 electronic document files for this size case (2-3 gigabytes of data).  The firm has to make a decision:  how do they review these documents and search out those that they need to support the case? 

Surprisingly, within this smaller firm environment, many attorneys simply attempt to print out the documents on paper and read through them, sorting them by hand into groups of related stacks until they have determined which items support their case.  They resist sending the documents to a service provider because it seems too challenging to determine the fees they might have to charge the client at this point.  Neither do they have other means to search through the documents electronically.  While they may take some comfort with this low-tech approach (and reading through this many documents may even help boost billable hours), it is subject to tremendous inaccuracies and is clearly not a forensically sound way to protect the evidence.

Eventually, the firm may have the documents loaded into their own case management software; however, even this can present technical challenges for some firms.  Many small and mid-sized firms comfortably use case management and presentation software.  Nevertheless, the challenges of importing EDD documents, often merged with deposition data and other evidence, can present additional technological hurdles.

This scenario does not address the possible need for more advanced technologies capable of cracking native files to extract their embedded metadata and make them searchable in an SQL database via a browser.  Understanding the technology at this level needs to be left to specialists.

All the technology should remain "under the hood" in a commoditized solution.  Documents processed through an EDD software solution should make it all the way through to the case management system and appear transparent to the user through the use of interfaces like the EDRM XML standard.

Strategies for Modern EDD Commoditization
Data collection tools.  The firm will need to collect the data from the source hard drive by using a forensically sound data collection product.  This product should be easy to implement, although it will not obviate the need for more complex forensic collection solutions for larger, more complex cases.  Nevertheless, it should suffice for the broad general market targeted by this product.

The user simply launches the product and is prompted when the copy from the hard drive onto CDs or other forms of media is complete.  This product automatically should provide forensically sound controls without user intervention and prevent the data from being modified after it is copied.  The data would then be sent either via FedEx or electronically to the firm.  The data could be transferred via FTP to an online hosting company as well.  The firm would be charged a fixed fee for collecting the data.

Data processing.  Once collected, the data would then be processed by a certified service provider at an established fee per gigabyte.  For the service providers, cases of this size are not very challenging, neither are they very profitable.  As with photographic processing, standard templates could be used so there were minimal labor costs to set up and run the jobs.  If they could then be grouped together into larger batches, there would be a good business case for the vendors to do this type of processing.

Instead of having service providers perform all of the searching and culling at this point, the data would be made available for previewing through the use of a simple browser interface, the same as they currently use to search the Web.  Attorneys or paralegals could start to perform electronic searches of the documents from their home or office.  Documents could be tagged and notations made to identify and categorize documents very early in the process.

Those documents that remain after culling would be tagged as responsive and could then be downloaded automatically via XML to the firm's case management system.  Once in the case management system, documents would be available for collaborative review and presentation.  In essence, stashed in the attorney's electronic briefcase just as they are today in paper form.

You Press the Button, We Do the Rest
Commoditizing electronic discovery would provide litigators the ability to identify in advance reasonably low, fixed charges that could be easily billed to clients; to properly collect, search, and cull electronic documents reliably in a short period of time; and then view and manage those documents quickly in order to establish an appropriate legal strategy early on.  Technology dependent actions would be performed by specialists, and the firm need not worry about what is "under the hood."  The best news is, the technology required to automate such a commoditized electronic discovery approach currently exists and is now being implemented to meet the FRCP needs of the small and mid-sized law firms.

About our author :: :: ::

Jim Grebey is a Vice President of CT Summation and runs the Discovery Cracker group.  He has been working in the EDD space for five years, having worked with both law firms and vendors on their e-discovery solutions.  Prior to CT Summation, Jim served as Chief Operating Officer for DocuLex Inc.  Jim often speaks and writes on litigation support topics.   He can be reached at james.grebey@wolterskluwer.com.