Remember back in the 90s when you expected the new millennium to bring flying cars and world peace?
Some things just donât change as fast as you hope. And one of those things is eDiscovery.
One would think, for instance, that line-item vernacular like âdata imaging of produced dataâ and âhibernated subcollectionâ would have worked its way out of the vendor lexicon in the course of the last 20 or so years -- for one, because regular humans donât talk like this and, two, because⌠well, havenât we milked those cows long enough?
But where almost every other professional and personal walk has been dramatically transformed by technology in the past 20 years -- think about how you listen to music, or communicate in the office, or get from point A to point B -- good ol' eDiscovery just keeps doing its thing.
Now, to be fair, there are a lot of companies working hard to trim the fat from this larded system (â20% off after the first five terabytes!â).
But, in the absence of any meaningful innovation (predictive coding is more than a decade old...), most are just trying to get it while the gettingâs still good -- record companies marking up CDs on the eve of streaming.
So buyer beware.
Letâs take a look at a basket of vendor invoices and proposals weâve recently come across to illustrate this point. All fees detailed below are rates that have been published within the last 24 months, with some coming as recently as January.
Now this is genuinely comical -- vendor markup in its purest, most unadulterated, most âletâs just sneak it in and see if anybody says anythingâ form.
In other tech-focused industries, the joke would be as simple as, "wow, weâre still using physical media?"
But again, this is eDiscovery, where those 1 TB hard drives you get at Walmart for $13 are leveraged as incentives to get you to sign on the dotted line.
Letâs take a lookâŚ
âď¸ These guys are listing a hard drive (of indeterminate capacity) for $199. Ah, charm pricing!
âď¸ This vendor is charging $300 for a 1 TB hard drive -- which, in addition to being about 1000% more than rack rate, is, in this case, something you might actually want to consider, because, apparently, if your filters change after archiving your data, youâll most definitely need a backup to restore that data to its desired state.
âď¸ Now hereâs something you donât see every day: an âexternal padlock.â Iâll be honest, I had to do some Googling for this one. Turns out an external padlock is just a hard drive that can be password protected. Basically a digital gym locker. Because, you know, if youâre going to be mailing evidence, the very least -- literally, the VERY least -- you can do to protect that data is to combo lock it. Apparently some come with a âbrute force self destructâ feature, which I think means, in a bind, you can crush it with a shovel.
Again, while most vendors specify a rate for physical media, itâs usually just a bargaining chip. So ask that it be thrown in for free. Youâre familiar with how the dinner mints at the four-star steakhouse are âcomplimentaryâ? Same thing.
So, usually, litigation is something that you can plan out far in advance, which is why, if youâre reading this post, youâve probably never had to work on the weekends or during a vacation.
This is why your vendor will likely charge a premium for âoff hoursâ (their off hours -- not yours) -- to deservedly punish you for your inability to predict the dumpster fire that has just fallen into your lap at 4:47 on Friday afternoon.
âď¸ As opposed to "ESI Collection, When You're REALLY In a Bind"
Now, to be fair, there are reasons to mark up your rates when they fall outside the traditional 9-5. Labor is generally more expensive and less available. And because you have your client over a barrel.
But surge pricing is just the tip of the pro serve iceberg. Generally speaking, you should plan to come out of pocket every time somebody does something (i.e. the task isnât automated by software). And, as a rule of thumb, those somethings are usually button pushes disguised as value-adds. See, for example, the âconsultative and customized supportâ that, in the instance below, includes âtransmittal... of electronically stored informationâ (this means sending an email).
Other examples of this type of $150+-hour work include...
âď¸ In Logikcull, this means clicking "create new project"
âď¸ "Drag-n-drop" in Dropbox lingo
âď¸Meaning, typing words like âprivileged,â âhot,â and âunresponsiveâ into a computer field.
âď¸Question: If punching the delete button is a professional service, why donât you see more âSr. Deletion Specialistâ titles on LinkedIn? (Bonus points if you caught the $200 hard drive surcharge.)
Also beware the type of catchall language that, in as many words, states: we can charge for anything at our discretion. Examples found above include âincluding but not limited toâ and the tautological definition of professional services as any âbillable operations.â
If youâve ever wondered how many different ways you can divide a billable hour, youâre in fine company.
Itâs standard practice for vendors to bill in six-minute increments (.1 hours), which means, if I was making eDiscovery money to write this post, Iâd have charged my employer $39 for the last paragraph. You're welcome!
Among the most nickel-and-diming, and most frustrating, of eDiscovery vestiges is the practice of per-page fees, which generally appear during the production phase -- one last opportunity to extract a proverbial pound of flesh.
These fees appear to be minimal -- usually a couple cents per page for âimagingâ (i.e. converting to TIFF or PDF), OCRâing and/or Bates numbering (the digital version of barcoding) -- but they sneakily add up.
âď¸Gives new meaning to âJust my two cents.â
Consider a 100 GB collection that is whittled down to a production volume of 5 GB. And assume each gigabyte consists of 15,000 pages -- a conservative estimate. Now multiply that number by $.02 per page.
That penny charge is now $1500-and-donât-let-the-door-hit-you-on-the-way-out.
Whatâs funny (not in the ha-ha sense) about these production fees is that they show eDiscoveryâs unmistakable lineage to the days when litigation support still meant printing out reams of email so it could be read and marked up by fleets of attorneys.
For context, Kinkoâs went kaput in 2008.
Unfortunately, with many eDiscovery companies, the biggest barriers to entry generally pile up around various facets of data processing -- and these typically manifest as tiered per-GB tariffs that build on each other as the amount of data is whittled down.
Hereâs a pretty standard breakdown of processes/buzzwords, from least expensive to most expensive.
Typically, youâll encounter additional fees should you have to deal with discovery files that have been exported from another vendor database (jokeâs on you plaintiffs counsel), or otherwise derive from a proprietary system. And yes, in addition to the per-GB rate youâll pay, you should also expect to be tagged with pro serve fees for handling of said database.
Together, youâre looking at somewhere between $175 to $300 per GB just to get data into the vendorâs system -- before monthly hosting fees, user fees, analytics fees, fees to perform âcomplexâ or âcustomâ searches, we just feel like it fees, and so forth.
Luckily, you should expect bulk discounts, which may resemble the schedule below.
Now, granted, these price breaks might not look very attractive on the surface -- given that they donât kick in till the **fifth terabyte.**
But look at it this way: after youâve burned through more than 3x the average lifetime savings of a US household, $20 a gig is going to feel like sweet, sweet relief.
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