Once, people entering the legal profession could safely assume that the word “metrics” had meaning only to statisticians, engineers and those in similar occupations. But today, with the growing sophistication of electronic data discovery, anyone running legal EDD projects simply must have a working knowledge of metrics. Just look at the renewed focus on constraining costs expressed in the proposed amendments to the Federal Rules of Civil Procedure. The bottom line: you cannot predict and control EDD costs if you cannot measure them.
In general, a metric is simply a measurement of some quantifiable element. This means that the first criterion for a metric is that it be measurable. In EDD, some measurable items often include data volume, time and expenses.
However, an element can be measurable without being relevant. Therefore, the second criterion is that the metric be meaningful in the context of the matter and to the specific client. Measurable and meaningful metrics can vary by phase. For example, the cost of printing or copying may be relevant during the presentation, review, processing or production phase, but have little or no importance during the analysis, collection or identification phases. Metrics that typically span all phases include labor costs, broadband usage, certain overhead expenses and electronic storage costs.
The term e-discovery covers all aspects of mining electronically stored information for relevancy in a regulatory, criminal or civil matter, including identifying, collecting, storing and searching. Using metrics is essential to accurately forecast the cost of EDD, budget for discovery, control costs in each matter as it progresses and create efficiencies over time. This is, of course, different from merely receiving a quote from an EDD e-discovery vendor and then seeing if it is met. For example, knowing how much it costs for Corp. X to collect data for one custodian from say, two standard data sources, for a one year date range, might be essential to claim undue burden to opposing counsel to restrict the scope of EDD. Yet many clients do not have access to this kind of sophisticated metric.
Beyond budgeting, metrics enable efficiencies in the EDD process. If you can standardize the overall process, you can apply metrics, identify improvement—and repeat. This is the application of basic Kaizen continuous improvement principles
. Armed with metrics you can insist that, over time, counsel or vendors identify efficiencies at every step—to perform EDD quickly, more economically and more accurately. For example, that can result in less project management time billed processing a gigabyte of data, or more useless data being culled before a review.
A key first step to liberating the power of metrics is to adopt the special EDD billing codes designed for in-house legal departments, vendors and outside counsel. The UTBMS L600 Code Series
was created by the Legal Electronic Data Exchange Standard Oversight Committee Board
, based on the model proposed by the Electronic Discovery Reference Model (http://www.ledes.org
) expressly for EDD use. Although no universal metrics currently exist for EDD and must necessarily vary by client and matter, the LEDES model for EDD divides the process into stages or phases, providing a first step to begin to measure costs for the key dimensions of EDD. From those baselines, you can work with vendors and outside counsel to seek efficiencies moving forward.
Industry standard metrics can be helpful at first, but because each corporate client has a different data universe, the goal is to develop metrics for a specific client based on actual EDD over time. For example, one client may find its employees generally have less gigabytes of email stored per year than the industry average. With the help of a good vendor cooperating with IT and legal, baseline metrics and costs can be developed and continually fine-tuned. For example, after measuring perhaps a dozen matters, knowing that on average it costs $800 to collect and move to a document review tool one gigabyte of email would be a key metric for forecasting cost.
The EDRM Metrics Model
is also a valuable framework to help users think about EDD metrics. It provides a framework for planning, preparation, execution, and follow-up of EDD matters and projects by showing the relationship between the EDD process and how information, activities and outcomes may be measured.
By combining metrics, such as the average cost to do X, with the relevant pricing model, it is possible to create a budget calculator designed specifically for EDD. Most of these have already incorporated a number of assumptions, but they normally include the ability for users to make modifications. Typically, these programs base budgets on the cost-per-gigabyte of data by unit, sometimes referred to as the cost-per-volume. This means that users may need to perform some tweaking—as documents vary widely in the amount of gigabytes used; for example, one gigabyte might hold a 6,000-page document or a 60,000-page file.
However, it can be just about impossible to develop meaningful metrics or budget calendars over time if the client uses different vendors and/or counsel, or does not require the same standards. A good EDD vendor working with client’s legal department and IT team can help put a metrics and cost containment program in place.