In a discussion paper sponsored by the Canadian Judicial Council entitled, “Guidelines on Benchmarking of Costs,” Sandra Potter of Indicium Legal has presented for discussion an approach to determining appropriate costs for standard ediscovery services. The paper should serve as a useful source of guidance, even as a sanity check, for anyone trying to figure out what is a reasonable price for ediscovery services — whether they are offering those services or paying for them.
As stated in the Foreward: “These guidelines have been prepared by the Canadian Judicial Council to assist courts. Judges retain discretion in making any cost orders in a particular matter. Use of these guidelines should assist both lawyers and judges in considering e-discovery as an affordable tool, particularly when pursued in proportion to the scope of the litigation.”
Noting the recent Practice Directions issued by BC and Alberta, as well as the CJC’s own National Standards, the paper argues for the value of benchmarks for the pricing of ediscovery services. Benchmarks, it argues,
1. … provide a guide for the Courts to assess costs in a matter where technology has been used to assist with the litigation
2. … ensure that Law Firms which choose to do this type of work in house are still able to get money back for their client if they win a matter; [and]
3. … provide a guideline to firms and end clients alike as to how the Court might rule on such costs and provide a predictive costing model.
The report provides line-item detail for services in all of the following categories:
1. Document Preparation
2. Database Creation
3. Numbering (Electronic Bates)
5. Objective Coding
6. Processing Electronic Files
7. Database Management
8. Determination of Production Set (Legal Analysis)
9. Project Management
10. Examination for Discovery
11. Common Trial Book Preparation
12. Hearing Preparation
14. Appeal Preparation
The paper does more than present sample costs (which are derived mostly from consultations with jurists and lawyers in B.C.); it also offers a method for developing benchmarks in other jurisdictions. For this broader, forward-looking initiative, it draws on definitions and approaches already in place in B.C., Ontario, N.S. and elsewhere. And the framework it presents allows interested parties to continue this important work on a local basis.
Anyone working in this area will have put together his or her own cost breakdowns and lists of vendor pricing. The CJC’s approach offers a way of standardizing these fragmented, apples-and-oranges efforts so that we can all begin to speak the same language. Not to get too excited (we are Canadian, after all), but this has the makings of an EDRM-style analytical framework for understanding ediscovery costs.
CJC’s Discussion Paper is an important contribution to the important work of developing meaningful, intelligible metrics that can guide how ediscovery costs are estimated, compared, calculaled and awarded.
We will be revisiting the thorny issue of pricing and pricing models — and what might be a better approach to RFPs and vendor proposals — in future posts.