I am asked these two questions very often. The first asks how much does eDiscovery cost in South Africa, and the answer is, “I don’t know”. The second part asks if it is too expensive for SA and the answer to that is “No”. So, there are the answers – oh, you want more? Let us look at the first part and why I do not know the answer. Of course I know how individual aspects of eDiscovery technology are charged and what is best practice here and around the world but I have no control over how service providers charge for their services. Here in SA I get a “feel” for the range of fees of each provider which gives me a sense of “value for money” or otherwise but there is no reason why each provider should give me their pricing structures in the same way that law firms do not share their rates and methods with other firms. However, there are other very important aspects to the cost of eDiscovery technology that I would like to explain and help you to understand. In typical lawyer fashion, when I am asked how much eDiscovery technology is likely to cost, I say that it depends upon many factors. How much data is there and where is it? How many people are involved and for how long has the matter been going? What is the case all about? What stage are we at right now? These are all questions, and there are more, which are obviously necessary before any thought can be given to costing. If these questions are familiar, they should be, because they are precisely the kind of questions that a lawyer would ask if he was faced with the same question by a potential client, “How much will you charge me to handle this case?” So, you see that an eDiscovery service provide can no more answer the question without a great deal of further information than a lawyer can. Both can give rates e.g hourly rates and cost per Gb for hosting etc. but not much more. I attended a seminar in the UK once when a lawyer complained that service providers could never give costs and my response was “give me a fixed spec and I will give you a fixed price”. Imagine a lawyer answering the question with “R500,000” and then finding out the case was worth 100m rand, there were 25 important witnesses in SA, others elsewhere and the case was linked to other cases in the UK and Europe with 4 international law firms acting – err I don’t think so! The same applies to an eDiscovery service provider, without information he cannot be expected to give costings. However, if a service provider was told there was a total of 250 Gb of data to be collected and processed, 5 custodians, hosting was required for 3 months with 5 users, then some providers would provide a fixed price with caveats, much in the same way as a lawyer would. As an eDiscovery Consultant it is a little different for me as I am not involved in the cost of the software or staff etc. so I charge by the hour or day or on a fixed fee basis, but I still want information before committing. There needs to be common sense about this question and as a lawyer or an end client you have to scope the case before asking how much the technology and services will cost. Now you see why I don’t know the answer to the question, and then there is the point that each service provider charges differently. I am in a position where I can advise on best value, best practices and solutions, and reasonableness or otherwise of charges from service providers and I am often engaged to do just that. Moving on the second part of the title with question as to whether eDiscovery technology is too expensive for South Africa. The short answer, as I said, is a resounding “No” but there is much more to it than that. Firstly, eDiscovery technology is currently being used on an ever-increasing basis in SA now so that in itself is evidence that it is affordable or no one would be using it! However, there is more to be said than that especially if and when the Rules change making eDiscovery mandatory. Of course using eDiscovery technology carries a cost but it is an incontrovertible fact that globally, using eDiscovery technology WILL reduce the overall cost of a case and the current statistics are, by at least 30%. This is one of the reasons that the SA Law Reform Commission is currently calling for its incorporation into the Rules in its Discussion Paper 150 about legal fees. There is an economic problem in South Africa because the majority of eDiscovery solutions are “purchased” by service providers in USD or other currencies, yet the services have to be sold in ZAR which is weak. Yes, that is a big problem but it can and is capable of being overcome. In order to have the very best chance of reducing costs using eDiscovery technology cost effectively, we need three things to happen: - 1. Despite the costs of the software being used, service providers need to have a “feel” for South Africa and its market and economy. 2. Lawyers need to work much smarter and totally “buy in” to the fact that using technology will mean they spend less hours particularly for review than they would have in the past. In this modern world lawyers must use every available technological assistance and concentrate only, and be properly paid for, what they are undeniably good at. Clients will not pay a Partner or Senior Associate’s rate for reviewing irrelevant documents. It is a different way of working and efforts must be made as early as possible in the case to strategise cost effectively working with your service provider and/or Consultant. It means bidding, scoping and estimating the costs of a case in a better and different way than in the past. In the UK, lawyers have to file a budget including their own and service providers costs for discovery and if they exceed that (other than marginally) they will not recover the excess costs if successful. Budgeting is making its way into the SA system though not to this level……yet. Again, in the UK, proportionality is the overriding objective and this is spreading rapidly across the world. 3. Service providers in SA have to understand every aspect of what their software can do and work with and advise the client on how best to utilise it and make it cost effective. You cannot, for example, take a list of keywords from your client, apply it and think you have done your job as an eDiscovery service provider. Service providers in SA need to know more about eDiscovery, all of the features in their software, strategies and actions that WILL help and reduce costs whist ensuring discovery obligations are still met. The major point is as mentioned earlier, that using eDiscovery technology WILL reduce costs but it is not a magic wand. It can only work its magic when providers and lawyers understand how to make it work. Choose you service provider wisely. You know what, you may need an eDiscovery Consultant to help!!