There are two kinds of legal departments out there: those that are prepared for a lawsuit involving a mountain of electronic documents and those that aren't. Unfortunately, most fall into the latter category.
According to a November 2005 corporate litigation readiness study conducted by Connecticut-based market analyst EDDix, only 14 percent of the legal departments polled believe they have tools and processes in place to handle e-discovery, and only 28 percent rate their companies as more proactive than reactive when it comes to e-discovery readiness.
"We really focused on the project management skills when looking into e-discovery vendors," says David Schieferstein, senior counsel with Philip Morris USA. "Does the vendor have the capacity, history and references to handle the job? We called some clients and it was surprising because some were not entirely complimentary."
If you're supplying data that needs to be carefully safeguarded against public disclosure, you also should have your IT department review the vendor's security measures. Again, don't take anything for granted--ask each vendor to map out exactly what happens to a document once it leaves your site and gets to the vendor's facility. Be a stickler for details: inquire about data back-up and recovery procedures; measures that will protect your data from hackers and viruses; how, where and when data encryption is applied; and whether access to the servers that will store your data is tightly controlled. Then, when you get down to your vendor short list, be sure to schedule on-site visits to view the security measures first hand.
"You want to give the vendor a good sample of what you'll be collecting for production," says Anne Kershaw, founder of A. Kershaw, a New York-based litigation-consulting firm. "Data is different, and companies are different. Some are PowerPoint happy, while others lean toward Excel or Word documents. The vendors may approach a science-based company with a lot of technical documents differently. You want to ensure the vendors' systems can do what they say they can do."
During each demonstration, focus on the capacities of the review tool. Because the case will involve a substantial number of documents, your review team will need to be able to cross-reference each search. Make sure that you can configure a search a number of ways--by topic, author, date, or all of the above. And check to see if attorneys can redact, highlight or put a note on a document.