When it comes to something as important and fast moving as e-discovery, a lynchpin of litigation, knowing what you’re good at and, especially, what others may be better equipped to handle, is critical. It’s a challenging ecosystem where a misstep can undermine not only a well-designed litigation strategy but a hard-won relationship with a key client. The stakes can be, and very frequently are, high.
Danny Thankachan, litigation support manager and e-discovery consultant for 320-lawyer Thompson & Knight LLP, well knows how to avoid the potential perils and pitfalls e-discovery entails. He oversees the firm’s robust in-house e-discovery operation – a “mini-vendor,” as he describes it – and is accountable for all aspects of that operation.
“The bulk of our projects are routine,” he says. “If it has a reasonable amount of volume and a reasonable turnaround time, my team can handle it.”
That’s one of his roles. But his role morphs when the projects become more complex. These, Thankachan says, generally are much larger in scale, much tighter in turnaround time and/or much more demanding of specialized knowledge. “That’s when we reach out to third-party providers,” he says.
More often than not, that’s leading discovery management firm Inventus. It’s a relationship he’s nurtured since testing the waters on a trial basis with Alex Jacobs, a senior Inventus discovery consultant in Dallas. As Thankachan grew more and more confident in Inventus’ product, he steadily ratcheted up the work he sent to the firm.
“Alex worked for my department for a period of time in a contractual role, so we got to know each other very well, and I have a high degree of faith in his work product,” Thankachan says. “That’s the foundation of trust that gives me the confidence to give him the work that I do.”
Communication at the Crux
It was, however, more than the work product itself that won Thankachan over. A key aspect of the trust he developed with Inventus was the all-important foundational element of communication.
“An in-house operation has a particular advantage when it comes to communication,” he says. “We have extensive contact with our attorneys and develop a strong sense of what they want and how they want it. Real-time communication can be a barrier when we’re dealing with a third-party provider.”
In the end, it wasn’t regular status reports that won Thankachan over. It was the immediacy of emails and phone calls, which allowed him to monitor, in real time, the progress being made on the project Alex’s team was working on. It boils down to a simple scenario: An attorney walks into Thankachan’s office. “What’s going on?” the attorney asks. Thankachan needs a ready answer. Inventus’ facility with communication means he has one.
While Thankachan and his team can handle most of the e-discovery processing requests that come their way, some projects require specialized knowledge, such as predictive-coding technology or the use of specialized software that wouldn’t be worth purchasing for a one-off deployment. That means engaging an outside service provider.
“We don’t take on projects that we don’t have the confidence to do,” Thankachan says. “It’s my role to make that judgment call and make recommendations to our attorneys.”
Part of what enters into that judgment is a consultant’s facility with communication. “While an outside team can never replicate my team’s level of familiarity with the trial team’s needs, ease of communication should still be a top priority in choosing an e-discovery firm, given the lag issues and failure points that may arise when moving large amounts of data,” he says. “On a more fundamental level, free-flowing communication shortens the trust-building curve, and trust is integral to information sharing between organizations.”
Quality Control
Delivering a quality work product is also a consideration when choosing an outside vendor. Even if the firm does not have to absorb the cost of fixing mistakes made by an outside vendor — which can run into the tens or even hundreds of thousands of dollars — it can’t avoid absorbing the less tangible costs of what can be lengthy delays caused by the outside firm’s poor performance. “That’s risk,” Thankachan says.
Since switching to Inventus, quality has not been an issue. Whenever Thompson & Knight receives work product back, the project manager reviews the deliverables on all aspects to detect if anything requires improvement or revision, and Thankachan reports that, in all instances, the quality of Inventus’ work product has been exemplary.
Predictive Coding
Thompson & Knight has turned to Inventus for help with large predictive-coding projects. Fast becoming the gold standard for identifying potentially responsive, electronically-stored information, predictive coding can be used to prioritize preproduction review, sort documents by potential privilege and perform quality control on a planned production (by comparing it with the results of a linear, human document review). However, it also requires significant attention from an experienced attorney during the machine-learning process, as a flawed seed set or training process, uncaught and uncorrected, can compromise the review process.
Predictive-coding projects also demand close collaboration between a firm and its consultants. On such projects, Inventus ratchets up the responsiveness level, recognizing that an undue delay in responding to a request for a report from a project manager means a delay in the manager getting back to his or her attorney, which reflects badly on the whole process.
In the other large predictive-coding engagements that Inventus and Thompson & Knight have worked on together, Thankachan credits Inventus for its responsiveness. “I’ll request reports, as I did recently, and I’m able to get them back promptly, which facilitates me being responsive to my attorneys. That’s the point. If I have to wait on a third party for days to respond to an attorney’s request, then I’m not responsive to my attorneys and that reflects badly on the whole process.”
Defensibility
A key reason for outsourcing e-discovery review is defensibility, an issue that comes up most often in the forensics area. “We are called on to do a certain amount of data collection in-house, but in any case where there are allegations of bad faith, we inevitably go out to third parties to ensure that we have defensibility,” says Thankachan.
No law firm wants to be put in the position of testifying on behalf of a client as to the processes the firm undertook to collect data because there is an implied bias. Since the firm is being compensated by the client for its work, it’s easy for the other side to undermine that kind of collection. For this reason, Thompson & Knight would prefer that a third party, like Inventus – which has standardized protocols and processes, does these collections on a massive scale, and has credibility in front of a jury – take the witness stand.
The same issue applies to predictive-coding and large-scale projects, both of which can be challenged. The leads firms to rely on third parties, with whom they can claim an arm’s length relationship, that follow consistent processes in how they do that work, and that can provide a testifying expert in the event the firm is later questioned or challenged on the application of those tools or processes.
Choosing a Provider
Many law firms see e-discovery processing as a commodity business – a lot of firms (there’s a top-100 list) using the same software and offering the same expertise. While there may be some truth to this, no service industry is truly commoditized as providers vary significantly, not only in the quality of their work product but in countless other areas. Can they help you shape the review-and-production strategy? Can they tailor their services to meet the unique needs of your organization? How well do they keep you apprised of project status? How are they at managing difficult situations? Et cetera.
And when you find an outside consultant whom you have confidence in and like to work with, don’t feel as though you need to spread around the largesse. Consolidation of service providers offers many benefits, including elimination of cost redundancy, increased productivity (fewer man-hours required to manage fewer tasks and contacts), volume discounts, no learning curve/reduced training and fewer administrative headaches (dealing with just one specific business model, contractual obligations, accounting procedures, business cycle, etc.), among others.
Published October 31, 2015.
