How and when to inform your clients to keep them on your side

eDiscovery budgeting is still not a universally adopted practice. There are many reasons that factor into this. Not the least of which is that in the not too distant past, many attorneys faced a seemingly un-winnable eDiscovery budget decision:

1. Decide a budget is too risky and instead allow your clients to participate in each decision and to approve each expenditure as you go.
   • This path was often chosen because the amount of money spent was significant and a lot of the charges are for things we did not know how to explain very well. The downside to this is the amount of time spent. Many clients wanted more bids and more information because there are a lot of terms and units of measurement that make little sense and a big number in the total line. And that is completely understandable. Unfortunately, this usually slowed down the already slow process and added to confusion and frustration from all parties involved.
2. Run your case the way you know best. Maybe put together a “throw of the dart” eDiscovery budget and forward your eDiscovery vendor’s bills to your clients almost blindly. The hope being that they will pay them.
   • Usually this ended up with a conversation that included “I have to pay this charge every month? Why do you need a fancy online database?”, and “What am I paying you for if you are just using computers to do your job?”

If either of these scenarios sound familiar, you’re not alone.

Rest assured, eDiscovery budgeting has moved out of the dark ages. We are now able to predict expenditures much more accurately and realistically. Some of this comes from many jurisdictions further defining the rules of eDiscovery and allowing for a more predictable process. But part of it also comes from eDiscovery professionals getting better at explaining the variables that can change the budget at each phase of the process.

Over the years we have learned many lessons on preparing eDiscovery budgets. Some of them the hard way. Through both successes and learning lessons, we have continued to gain institutional knowledge that enables us to increase our budget accuracy.

Below are the 6 primary areas we keep in mind when preparing an eDiscovery budget:

1. Insist on engaging in an ESI protocol in each case and invest the time to understand the negotiation’s impact on costs.
   • This early step in the process is too often a “go through the motions” exercise if not overlooked altogether. This directly impacts the budget because without clarified rules of engagement, budgeting with any degree of certainty is impossible. Just as powerful, the indirect impact can be just as costly. Without a clearly defined and case-specific ESI protocol, the likelihood of a prolonged and costly discovery process is exponentially higher.
2. Allow your clients to participate in conversations with your vendors or in-house experts about the costs and associated benefits or drawbacks to early eDiscovery decisions.
   • Almost universally, the more informed a client is, the happier they are with the end product (and bill). Allowing them to be a part of the early process is sometimes a good decision and better aligns all parties.
3. Get a strong understanding of what activities will incur billable hours from your eDiscovery vendor and estimates for common tasks.
   • Ideally, openly discuss the desire to receive “not to exceed” time estimates for tasks large and small. We have found that end clients are much more frustrated by bills that are a surprise, no matter how large or small. Gaining approval for major hourly expenses and providing some cost certainty goes a long way in helping a client accept a budget adjustment.
4. Make sure to talk strategy and know your overall case value, and convey that to your eDiscovery consultant.
   • A major mistake that can be made is exceeding the value of your case with your eDiscovery budget.  The vendor should be able to steer you in the right direction as to alternate methods of review and production.
5. Know exactly what you’re trying to identify through the discovery process.
   • Going on a fishing expedition may not be in your best favor and is often costly. Narrow your scope as much as you can to reduce cost and overall time spent on review.
6. Work with your eDiscovery vendor or consultant to identify responsive documents by utilizing the correct custodians, search terms, and date restrictions.
   • This can quickly help to reduce the overall data set, thus reducing review time and production costs. Also, a detailed discussion with your forensic analyst can set the stage for what data actually needs to be collected versus collecting an entire universe of nonresponsive data.

The initial conversations with your eDiscovery vendor or consultant can make or break your budget. Get them involved from step one.

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