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Audio Discovery: The Real Costs of Human Review

Two excellent reports have come out in the last year or so that address a pair of related issues: the growing costs of e-discovery, and the use of technology assisted review to help curtail those costs. While neither one addresses audio discovery specifically, the general thesis still applies; technology really can help you do things better, and cheaper. Who doesn’t like better and cheaper?

Well, there is actually an answer to that question which I’ll get back to in a minute. But first, a bit more detail on the two reports I mentioned.

The first is an article from the Richmond Journal of Law and Technology by Maura Grossman and Gordon Cormack.  The link will download the entire article for you so I’ll spare you the legal citations, and in a short blog entry I have nowhere near the time to cover all the points. But I quote the first two sentences in the Conclusion of the report:

Overall, the myth that exhaustive manual review is the most effective – and therefore, the most defensible – approach to document review is strongly refuted. Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort.

Why does manual review fare so poorly in this competition? Lots of reasons, but a big piece of it is reviewer fatigue, and also that reviewers make mistakes and often don’t agree on the significance of what they’ve read. Shocking! Not everyone thinks alike.  Go figure.

The second report from the Rand Institute for Civil Justice, titled “Where the Money Goes”, looks at the cost elements involved in discovery. Again, the link is there for you to download a summary or the whole report, so I want to key on just one element. When looking at the costs of producing electronic documents, their finding was that 73% of the cost came during the Review component of the EDRM. What does that really mean?

It means that no matter how much people gripe about charges from the e-discovery vendors, it’s still all those in-house and outside attorneys, paralegals and other folks who are eyeballing the documents that drive the total cost in the process. And as with the Grossman article, the Rand report provides evidence that technology can help make the whole process better, and cheaper.

How does this apply to audio discovery? For years, if any party presented or requested large bodies of audio evidence for discovery, the expected process for managing this discovery was human review. And it generally takes about  4 hours of human time to review each 1 hour of audio. So if even a bargain-basement contract attorney makes $75/hour, that’s $300/hour of audio in review costs. Even a fairly small 1000 hour project would create a $300,000 cost, and most of the time the parties would just cry “unduly burdensome” and whisk it under a rug.

Fast forward to today, and effective audio discovery technology exists that has been proven effective in federal regulatory investigations, criminal cases and other litigation matters. It can lower costs by as much as 80%, in much the same way that technology assisted review lowers other e-discovery costs.  And yet, we see an interesting phenomenon, which is that many law firms still espouse the use of manual review to run these audio projects. Who wouldn’t want something better and cheaper?

People often ask me who my competition is in the audio discovery arena. And while there are a few other technology providers in this space, my answer to this question is actually different. My biggest competition is…wait for it…the billable hour.  Law firms make profit on billable hours. They don’t make profit on e-discovery costs (generally speaking).

I realize this is a bold and harsh statement, and I wouldn’t make it so blatantly except 1) I have heard from actual law firms who confirmed it for me, and 2) I’m not sure how many people are reading this blog yet, so I could use some publicity!

But seriously, if you have an opinion on this, weigh in here. Comments are welcome!

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About
Can you HEAR me now?

When it comes to audio evidence, the answer is oftentimes “NO!”

And this is unfortunate, because audio evidence (or “sound recordings” as the FRCP likes to say) are becoming a critical source of discovery content in both regulatory and litigation matters. So the purpose of this blog is to help you learn what Audio Discovery is all about and how to do it in the most efficient and cost-effective ways.

As your Bloggist, I bring 20+ years of experience in audio technologies to the table, first in the old Ma Bell system and then later with companies like Cingular Wireless and now Nexidia. So I’ve witnessed first-hand many of the revolutions in digital audio that are now dramatically changing how you manage this important discovery component. In this blog, I will help you navigate these .WAVs so you can be an audio expert too. And if you didn’t get that pun, even more reason to come back often!

Jeff Schlueter
VP/GM, Legal Markets
Nexidia