In last month’s column, I considered how cost and efficiency considerations have prompted many companies to bring in-house some of the collection and review functions traditionally performed by e-discovery vendors. I also described three scenarios in which a litigant should consider retaining an outside e-discovery consultant, no matter how sophisticated the company’s in-house resources. In this month’s column, I will discuss the second step in retaining an e-discovery consultant- now that you have decided your litigation requires an e-discovery consultant, how do you find the right one? To answer this question, we return to the three scenarios we considered in the previous column because finding the right consultant means finding the person or team with the skills and resources that match your needs for the case.
This may seem like an obvious question, but it is one that many experienced litigators still forget to ask. All too often I hear in-house and outside counsel ask me to refer them to a “good” e-discovery consultant. When I respond, “What sort of skill set do you need?” I typically receive a puzzled look in response, and the answer, “Somebody who is good at e-discovery, of course.” The key to managing e-discovery costs is paying for only what you need, and making sure you get what you pay for. Defining the objectives for the engagement is absolutely critical for a successful project.
For instance, if you are defending a pharmaceutical patent infringement claim, don’t hire a consultant who has spent the past five years working only on corporate and securities litigation. A consultant who does not already understand the industry culture and data systems and who does not appreciate the relevance of the data to the issues in the litigation will create unnecessary delay, confusion and expense. You have the right to expect your e-discovery consultant to bring the same level of industry knowledge and prior substantive experience that you would expect from trial counsel.
In the second scenario, your company has chosen to retain an e-discovery consultant because it anticipates e-discovery battles with its adversary, either because it expects to be going on the e-discovery offensive to dig deep into the adversary’s data, or because the adversary may attack the completeness of your company’s preservation and production. Here, too, you need a consultant whose prior experience matches the issues and technology for your case, but you also need a consultant who can address the court as a qualified e-discovery expert when discovery disputes devolve to motion practice. In this context, you need to approach the retention with the same care you would use when choosing a testifying expert witness. You need a consultant with the credentials and the courtroom skills to deliver persuasive expert testimony on the completeness of your company’s or your adversary’s production.