Posted by Steven A. Baron on Wednesday, September 9, 2015 - 08:00
Electronic discovery (or eDiscovery) continues to spark anxiety at law firms and legal departments. Electronic discovery adds complexity and new technology, and places a third party — the eDiscovery vendor — in the middle of the litigation process.
Your firm or legal department may fully outsource your electronic discovery or handle it internally with a purchased solution. Whatever your process, there are four main steps for managing eDiscovery services and solutions.
1. Decide whether to buy or lease
How your firm or department is structured may determine whether your electronic discovery needs will be better handled by a vendor selling an eDiscovery software solution or a vendor providing eDiscovery services.
To purchase an electronic discovery solution and successfully manage the cycle in-house, your organization will need a strong internal IT department plus a dedicated team to manage the discovery process. To minimize risk, you’ll also need more than one internal subject matter expert (or you may find yourself scrambling for a vendor if your single electronic discovery specialist leaves). However, many organizational structures don’t allow a single dedicated group to manage the discovery function across cases or practices. If this is the situation for your firm or department, you likely need an eDiscovery service provider with a strong consulting team who’ll provide ongoing support.
2. Ask yourself basic questions before you ask vendors detailed questions
Define your preferences and specific functional requirements prior to deciding how you’ll handle eDiscovery. Start by asking the basics:
- Are your discovery requirements simple, average or complex?
- What are the baselines (expected quality) associated with each phase of this eDiscovery project? With eDiscovery, there is currently no commonly accepted baseline for quality results, so this is an important consideration for your particular organization. Without baselines, you won’t be able to later evaluate how well the process went.
- Do you prefer working with large or small vendors?
- Do you have software platform requirements or preferences?
- Does the vendor have local personnel and facilities?
- Do you need a specialist or a full-service provider?
Once you’ve defined these broad areas, it’s time to ask vendors technical questions to determine how they handle specific processes.
- Can the vendor handle specific platform requirements (e.g., Relativity, IPRO, NUIX)? Will the vendor have compatibility issues?
- How will your case requests be handled? Many smaller firms will need live support throughout the document review life cycle, while larger firms may be able to work with an automated system.
- How will electronic data be secured, transferred and stored? How quickly can you access your electronically stored information for efficient document review? Your process for access should be simple and set a standard for future discovery requests; it also needs to be defensible in court and recorded with any third party involved in the process.
- What will your pricing structure be? Get specific here. You’re looking for transparency. Ask how the vendor will describe and bill hourly line items and per-unit costs. What can you expect to pay for each per project? If your needs are different than anticipated, will the vendor modify your rates based on your actual usage?
- Can the vendor provide current references? You’ll want to speak with existing clients about their overall satisfaction level, the customer service and ongoing support they receive, whether pricing was as quoted, and the vendor’s response time.
3. Define all budgets and retainers carefully
It’s surprising how often budget isn’t discussed until engagements start. Some services are priced per unit (e.g., documents copied), and some tagged to flat fees. Since cases vary, even apart from the inevitable surprises of litigation, it makes sense to request cost estimates at the outset.
Ensure all vendor retainers address scope of work, including amendment/add-on options that can avoid costs for unneeded services. Properly crafted retainers also account for total ownership of work product, subpoenas, billing and confidentiality.
4. Track metrics and compare to baseline performance levels
Monitor performance in each stage of the electronic discovery process against the baselines you’ve set (see No. 2 above). Your vendor should be able to help you evaluate aspects of your process such as litigation readiness and technology integration and also help you improve your monitoring, training and change management efforts.
As the volume of electronically stored information continues to increase, more legal organizations are likely to turn to outside vendors and specialized law practice management software. When selecting a vendor, don’t stop at reading the vendor's marketing materials, but carefully consider your needs and the needs of your internal clients.
Once you've defined your needs, we invite you to take a look at Robert Half's electronic discovery services to see if we might offer the right solution for you.