Recently (July 10th 2013) I wrote a piece called Hang a Shingle which featured a certain Casey Flaherty who is corporate counsel at Kia Motors America.
My piece featured a short five minute interview with him by Monica Bay of Legal Technology News (Casey Flaherty on Tech Audits.) where Mr Flaherty discusses making lawyers undergo technical audits before he hires them.
As if that was not enough for us lawyers, Mr Flaherty is now in the news once more. This time he is talking on the subject of the cost of e-discovery. What is more, he is asking for e-discovery vendors to help him standardise the process of comparing EDD vendor cost projections so that he (and others) can compare apples with apples.
It was Chris Dale of the E-Disclosure Information Project whose post on this subject pointed me in the direction of Mr Flaherty’s latest article.
In a piece entitled Establishing a uniform basis for e-discovery costs projections, Chris posts a link to Mr Flaherty’s article called E-Discovery Costs prediction: it’s time to share. Click here to read the article and, whatever you do, do not miss the Funky Finger Productions’ First Client YouTube video under the heading “Caveats!!”
Seriously, though, the point I want to make about all this is that Mr Flaherty highlights exactly what Jackson had in mind when he produced his report and precisely what the changes to the CPR in April this year seek to bring about.
Lawyers are now required to put together budgets for the cost of e-disclosure in litigation in this jurisdiction. However, it is all very well to say that lawyers must put together a budget for the costs of e-disclosure but it is not so easy to achieve the desired result and to be able to compare the results where the process is itself opaque because of the way most vendors set out their projected charges.
By this, I do not mean to suggest that vendors set out deliberately to mislead their clients but that there is such a wide variety of ways in which the costs they will charge are set out that it makes comparing like with like all but impossible.
As Casey Flaherty says in his article:
My objective is an easy to understand comparison summary. This, however, represents order fashioned from chaos.
Many people will have detected a view in the litigation marketplace that clients are looking for a better way of projecting the cost of the litigation in which they are involved. I suggest that the days when a litigator could say that the cost of the litigation depended on a variety of factors such that it was impossible to predict the cost, are over. Indeed, the Jackson reforms are designed to make it impossible for a litigator to pursue this course.
I have lost count of the times when clients have said that they cannot assess what the overall cost of e-disclosure services is going to be because each vendor operates in a different way and whereas Vendor A includes a process such as predictive coding in his charges, Vendor B seeks to make a separate charge for it. What you cannot know is whether Vendor A is making a higher charge elsewhere for doing routine work whereas Vendor B does not do so. The result, as Casey says, is chaos from which he seeks to extract order!
May be it really is time to share. I expect to have to come back to this issue again but in the meantime I will watch with interest to see who shares what with Mr Flaherty.
I feel sure he will tell us.