Now More than Ever, How You Charge Clients for Litigation Support Services Matters

By Nathan Curtis, IGP

Now is not the time to rely on the same old same old. Mattern has been conducting cost recovery studies since 2004. During this time, we have seen economic slowdowns and recessions, unapparelled lateral movement of associates, a multitude of mergers, acquisitions, and international expansion--and now a pandemic.

With every challenge, there are opportunities—this time, one of those opportunities is the recovery of litigation support and e-Discovery costs. Historically, firms had absorbed at least some of these costs, and while that was untenable before the pandemic, it is certainly not sustainable moving forward. The good news is, firms that have been experimenting with new delivery models in this support service area are seeing significant increases in the recovery of costs while offering greater value to their clients.

Looking Back: Models and Recovery Rates
With big data and the resulting explosion of electronic documents, texts, images and voicemails that are subject to discovery, the cost burden of e-Discovery was increasing at a pace that required firms to reconsider their recovery approach or lack thereof. This is why in 2019, Mattern went to the market to conduct our first deep dive into e-Discovery and litigation support cost recovery in the 2020 e-Discovery and Litigation Support Cost Recovery Survey (“Survey”). Some of the results were expected, other results surprised us.

Some of the unsurprising Survey results included the fact that over 80% of firms reported electronically stored information (ESI) involved in discovery was on the rise. We expect this to continue despite the current turmoil in the marketplace. Disputes will continue to be filed with the courts, likely with a shift to employment and bankruptcy/insolvency matters, but the aggregate case volume will remain steady for the most part as affirmed by recent court filings data compiled by Lex Machina.

Mattern also suspected the more advanced activities, especially those typically scrutinized by opposing counsel, would largely end up vended to third-party providers. This certainly proved to be the case for forensics data collection, where virtually all firms reported shifting this activity to organizations that specialize in this field. Mattern supports the decision most firms have adopted in this area; this is one of our core recommendations to avoid spoliation and scrutiny risks. 

Furthermore, we expected to see firms with in-house IT or Litigation Support talent capable of processing and hosting ESI utilizing on-premises infrastructure to also rely on third-party assistance to manage larger data collections and, oftentimes, hosting. 

Read the full article in ILTA's 2020 November White Paper.