Many people consider e-discovery costs in relation to a specific case. I have seen some statistics that put e-discovery costs at 40 to 60 per cent of a litigation budget. However, consider that discovery frequently is the most involved step of any litigation and in some cases — those that settle before trial — the only material step taken in the litigation apart from pleadings. In those cases, the proportion of the discovery cost to the budget makes sense. And because those statistics don’t tell you about the actual cost, including in relation to the cost of delivery, they do not help with budgeting.
So I prefer to consider costs at both the project and the portfolio level: what does it cost to do e-discovery in this litigation, and what does it cost in general? It becomes easier that way to make several general observations about why e-discovery costs trend upwards.
There are more available ‘facts on the ground’
Modern technologies make it easy for people to communicate and do business — everywhere and with anyone. As a result, there has been an explosion in the volume of documents, which can now be found in duplicate, multiple formats, and in multiple locations. Today, an individual can receive hundreds of e-mails a day and write just as many. People simply did not write 500 letters a day when typewriters were common. People have more devices, so their work is distributed across several locations and computers make it easier to communicate with more people, faster, and doing more transactions. As a result, there has been a corresponding increase in the number of “custodians” — people lawyers must consider in developing a witness list and strategy for the collection of documents.
The result of these developments is there is more stuff and places to sort through in order to locate potentially relevant records. Costs go up when there are more documents, custodians, locations, data formats, devices, and systems from which information needs to be retrieved.