Do GC’s pay lawyer’s rates for document review in eDiscovery?

The recent article ‘Why Do GCs Pay Lawyer Rates for Document Review in eDiscovery?’ raises so many questions, issues and talking points, that although I am in the process of writing one of my blog posts on the wider and entire picture of document review, I thought this was worthy of  a few preliminary thoughts.

Firstly, I disagree with Ralph Losey in that the person making relevant/not relevant judgments MUST be a licensed attorney or paralegal unless there are laws in certain States of the USA of which I am not aware. For example, Forensic Investigators often carry out reviews. The head lawyer in a case needs to be satisfied that not only has he conducted a “reasonable” search for all relevant documents, he (or his client) has to sign a Statement of Truth when discovering his documents. That is the case in the UK and I believe something similar occurs in the USA and it certainly does in SA using Form 11 Affidavit. However, I do not think this is really the point in question here.

The current position is that review in eDiscovery matters accounts for approximately 70% of the legal costs and so it is everyone’s interest to do everything possible to drive down these costs. Some may say that law firms would not wish to reduce these costs as it is taking money out of their pockets but that is an objection I have encountered numerous times over the years when discussing how technology can reduce the cost of review. It is not a difficult objection to counter. If law firm A is charging its highest rates to have all documents reviewed by Partners or the most senior attorneys and law firm B has an organised structure in place which involves lower rates for certain parts of the review as well as using technology, together with “eyes on” by the Partner and senior lawyers for only documents which are likely to be relevant, which law firm is likely to be selected by a GC? This is the point, I believe, in this thread.

A GC is employed by a corporation and he wants the best service at the best value for money for his employer. In these modern times many GC’s are aware of factors which can materially assist and lower review costs in eDiscovery cases. Technology; a tiered review structure with lower rated reviewers doing parts of the review; and LPO outsourcing are three options or even better and this is almost always my advice, a combination of all three. Therefore, it is up to the GC to insist on value for money and if he does not or if he has no knowledge of the factors I have mentioned, then maybe he needs to “wise up” very quickly.