By Mike Shufeldt, JD | Vice President, Legal Operations
Much has been made of the argument as to whether to outsource ediscovery (see Ralph Losey’s excellent article “Five Reasons to Outsource Litigation Support”, Law Technology News, November 2, 2012). Similarly, an excellent rebuttal was supplied by Bryon Bratcher and Tom Baldwin, “6 Reasons to Insource Litigation Support”, Law Technology News, January 18, 2013.
It is well accepted that there are times when both scenarios make sense, but there are ways to get the most out of each dollar spent on outsourcing ediscovery and other types of litigation support.
For both in-house counsel and outside counsel, external litigation support vendors can act as an extension of their own legal department, creating extra value and a competitive edge for clients.
There are four major areas where an ediscovery provider must show they are up to par:
1. Efficiently Use Data For Multiple Cases
Especially for highly-litigious companies, it is quite common that the same data spans across multiple cases, even if the legal issues central to those cases are completely unrelated.
Here is a simplified, fictionalized example based on real scenarios:
Jack Smith at XYZ Corporation is a primary custodian in the case NW Widgets v XYZ, and his files from 2002-2007 are potentially relevant. The ediscovery provider collects and processes these files and makes them available for review. Jack Smith then becomes involved in an employment matter with a disgruntled former employee of XYZ. Jack’s files from 2005-2008 are potentially relevant. Should this custodian’s overlapping files from 2005-2007 be recollected, reprocessed, and even re-reviewed in their entirety? Should XYZ pay the provider to host a separate instance of this data in this separate case?
It seems obvious that the answer to the above question is NO. XYZ should not pay more than once for the same services on the same data. The truth is, however, that corporate legal departments and law firms do this every day. It is very common that the same data is handled by several different providers or even, in several instances, reprocessed by the same provider and re-reviewed for privilege.
Clients should be able to use work product from one matter to the next. This practices gives transparency into data across matters.
The practice of collecting, processing and storing the same data multiple times is a real issue for both law firms and corporate legal department. The right provider can – and should – help put a stop to it.
2. Alternative Fee Arrangements
Alternative Fee Arrangements (AFAs) are now common between outside counsel and their in-house clients. These AFAs can take many forms, from fixed fees to value-based fees. For the purposes of this article lets concentrate mainly on fixed fees.
Predictability for cash flow and budgeting are attractive elements of a fixed fee structure. This is useful for managing partners looking for ways to avoid a large and unexpected bill and also a great way for General Counsel to minimize their spend and bring predictability to a corporate spend that is usually a unpredictable and draining.
Fixed fees place the onus for efficiency on the ediscovery provider. This causes them to find ways to become more efficient with cases while making sure to live up to their Service Level Agreements (SLAs). This focus on efficiency leads to innovation like repurposing the same data across multiple cases. In order for this to be truly effective, however, counsel must provide transparency into their existing and anticipated litigation needs, making their partner truly an integrated extension of their legal department or firm. This also helps to level the playing field and establish a symbiosis in financial risk between client and provider.
Another great benefit of fixed fees for counsel is that they can treat every case as if it may go to trial. Even small cases can be sent to counsel’s provider and handled with the same expertise and seriousness as their largest cases, ensuring that legal and business decisions govern the merits of a case, and not discovery fees.
3. Flexible Line of Products
Whether dealing with ediscovery, IT or even the latest home gadget, we have all been frustrated when a product we have invested in becomes obsolete seemingly overnight. Even the most powerful proprietary platforms of today can have problems or limitations tomorrow.
If you have signed a long term deal with a provider who relies on one single platform, you are quite frankly stuck, just the same as they are. Conversely, if you have signed a long-term deal with a provider who is constantly evaluating and adopting best-in-breed technologies, you have the flexibility and scalability to handle cases in the most efficient manner possible.
The same is true for institutions who bring their ediscovery work in-house. When corporations attempt to insource a platform there is always the risk of the same issues that this platform could become obsolete or be inflexible. This enhances internal risk for potential liability as well as exposure to the perils of peak and valley workflow variations.
Not every case is the same and not every case can benefit from the same tools. It is critical that a provider be able to “put the Legos” together for a unique circumstance and provide a uniquely suitable solution. This cannot be done by providers who offer only one solution or by legal departments who with limited staff and solutions.
Certainly, having options in life is nice – and ediscovery is no exception. Actually, options in ediscovery are a necessity these days!
4. High Degree of Expertise
Having all of the tools in the world, and all of the creative pricing that comes with them, is great. But all of that is for naught, if a provider does not have the right people to back it all up. It is about people just as much as it is about technology and process.
So how can you tell how good Provider A’s project managers will be in a given case? You need intrinsic evidence. Ask your provider for a representative client list and references from those clients. Ask for a list of the provider’s certifications. Ask your provider for a test project with all the trimmings.
Only counsel who has dealt directly with the provider can give you the real story.