Corporate legal departments are at a watershed moment in their litigation management. The changing nature of e-discovery is making 2013 the year when they must decide how best to streamline an increasingly complex process. Many are choosing to work more closely with a primary e-discovery vendor, focusing on building a consistent process with a direct line of communication.
Increased control over litigation expenses is one factor fueling this trend toward consolidation, but savvy legal departments realize many other benefits from partnering with a provider with a proven history of reliability, experienced project management, deep knowledge of industry-leading technology and best practices, and commitment to complete defensibility.
For many forward-looking in-house counsel, vendors with battle-tested experience are becoming the primary avenue to increased efficiency and consistent, reliable results. Here are seven factors fueling this shift.
Consistency Is King In 2013
Complex litigation is inherently unpredictable, but working directly with a vendor on an e-discovery matter doesn't have to be. And working with a single vendor consistently across matters pays many dividends.
Those dividends begin by developing an understandable, transparent and predictable pricing model that gives corporations insight into and control over e-discovery spending. Leveraging metrics and aggregating information across all projects, rather than just the monster ones, gives law departments the best basis on which to make sound decisions.
One key insight gained is that not all processing is created equal. With a large variety of processing options and techniques available, e-discovery consumers often believe they are receiving expected features or functions when that is not the case. Different service providers may treat common issues like handling password-protected files and encrypted mailboxes differently. By developing and working with a known set of processing standards, corporate counsel can enjoy peace of mind. In addition, they avoid costly delays and errors when transferring data for processing and review.
Like processing, not all data is created equal. Corporations spend hundreds of millions each year installing, configuring and customizing software to manage information. Corporations that work directly with an e-discovery vendor benefit from the opportunity to develop solid, consistent processes and techniques to both maximize the value of that investment and address their own specific nuances. One example where this can really pay off is today’s complex email archive systems, where subtle intricacies can be an unpleasant surprise.
Consistent processes across matters contribute to the hugely important area of defensibility. When a strong client/vendor partnership is in place, strict adherence to carefully crafted techniques becomes much easier to maintain, which in turn makes defensibility built-in, reliable and easy.
Culling Perfection Matters
Despite the proliferation of information and the intense focus on “big data,” the key to effective e-discovery is often optimal culling. By working with experienced vendors, corporate clients can develop proprietary best practices that they can apply during the culling stage. Providers working in consultation with a corporate client can establish custom-culling filters that may include specific domain lists and unique file types, as well as complex and effective techniques to accurately identify potentially privileged information.
Customizing An Approach Is Critical
Established providers seek to empower clients with custom tools that benefit the organization’s internal reviewers so that they can evaluate material according to their specific procedures. Although standards abound in the e-discovery cosmos, the needs of each client can be unique. Complex search protocols, a distinct review workflow, and uncommon reviewer management toolsets are just a few examples of complicated practices that benefit greatly from customized technical solutions. Working with a team that can be applied consistently across all projects ensures accuracy and efficiency. There is no learning curve that requires additional time and scarce resources.
Understanding And Controlling Costs
With an abundance of pricing models and options in the market today, it is critical that corporate clients go directly to the source. How are units measured? What services are offered at what point? What tasks are included in so-called “free project management”?
With more and more vendors adding no-cost items to their pricing, it is important for clients to fully understand what they are and, more importantly, are not getting at each step of the e-discovery process. Also, with historical knowledge of e-discovery spend and volumes, corporations can more accurately forecast anticipated costs and design the best discount schedule possible.
Technology Is Triumphant
When talented teams combine unique discovery oversight with appropriate technical tools, clients succeed. Immediate access to every detail of even complex litigation matters is available more seamlessly than ever before.
Today, in-house counsel seek vendors who offer real-time, directly accessible tracking of projects and transparent access to the data at issue in the case. With this new level of access to information from the very earliest stages of the process, counsel gain an understanding of the material. Lawyers can also develop and deploy efficient strategies from the outset.
For example, with the latest tools available, corporate legal teams can quickly, directly and easily create and manage detailed lists of search terms. These complex queries then run quickly in the background on a high-powered grid of search nodes. The results are viewed, and changes can be made immediately so that the impact can be ascertained in near real time. This fine degree of control allows for better and more efficient reviews.
By working with a qualified vendor, corporate legal departments can ensure access to the latest, most powerful tools while reducing or eliminating reliance on in-house technology. With the pace of change in the industry, it can be an overwhelming challenge for any corporation to constantly evaluate, acquire, implement and properly utilize new e-discovery technology. Technologically sophisticated vendors, on the other hand, stay abreast of change and implement leading tools, offering customers the ability to benefit from increasingly complex new tools as they become available, with no impact on the internal IT budget of the consumer.
Industry Expertise Limits Client Surprises
As exciting as cutting-edge technology can appear to be, without talented, experienced individuals, even advanced technology can fall short. With a strong partnership between a corporate e-discovery consumer and a highly qualified vendor, each partner can contribute according to its experience and talents.
This model of advanced resource allocation allows in-house teams to focus on their highest priorities, while the vendor addresses the full range of additional details. In-house counsel recognize that the art of managing e-discovery data is a specialty that benefits from talented and experienced personnel utilizing industry best practices.
Proven Track Records Speak For Themselves
Experience matters when even a single missed record or a questionably defensible process could directly impact the outcome of a dispute. Casebooks are replete with examples of flawed review projects that cost far more in long-term expenses, than in what could have been a short-term investment. It is all too common a storyline and an unnecessary risk to take in a virtual minefield of menacing situations.
For that reason, it is essential for corporate counsel to only consider partners that are renowned for their accuracy and proven track record of success.
The industry is mature enough that the number of vendors capable of handling a basic e-discovery process is large; however, only a select group is skilled enough to adapt to ever-changing rules, accustomed to aggressive discovery tactics, and able to apply the most advanced technology.
Conclusion
The benefits of working directly with a vendor go beyond improved document review and utilization of advanced software. Those seeking to control costs, optimize efficiency, reduce risk and increase defensibility are finding that the best approach is a close partnership between in-house talent and the right e-discovery service provider – one who knows data, the courts and technology and understands true collaboration.
Such collaboration gives corporate counsel visibility and transparency into both expenses and outcomes. It provides a level of consistency and predictability that has often eluded them in the past.
In the end, the direct alignment of expert support and cutting-edge tools is redefining the relationship between internal legal teams and their external trusted advisors, creating a single entity focused on a common goal – success.
Published January 24, 2013.
