E-Discovery: One size does not fit all

Not all e-discovery consultants are created equally.

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.

In the first of the scenarios from last month’s column, I described how an outside consultant can help your company to navigate the inevitable pitfalls when you must complete a production for a business unit or data system that has not previously been the subject of extensive e-discovery. In this situation, doing a production for the first time inevitably involves some degree of trial and error, and it is this process that can create costly mistakes and delays. What your company needs is a consultant who already has already gone through this trial and error process in similar litigation on similar data platforms at another client’s expense, so that your company can reap the benefit of the consultant’s prior experience without bearing the cost.

Given the volume of complex litigation and number of consultants currently in the market, you can find a qualified consultant whose prior experience matches the data systems and substantive issues in your case. You may have to search beyond the names that are already in your Rolodex, but it is worth the effort.

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.

In the third scenario, your company may engage an outside e-discovery consultant simply to mitigate the workload for your in-house personnel. No doubt your company outsources many functions to vendors who can deliver on a cost-effective basis routine, commoditized services. Even if your company has sophisticated in-house e-discovery resources, there may be instances where projects can be performed more quickly and cheaply by an outside vendor.

Bargain hunting does not require engaging a firm of questionable reputation. Because the industry is, by definition, project-driven, there is almost always some qualified firm available that has excess capacity because of a major case that has just settled. The consulting firms also are eager to develop relationships with clients who are frequent litigants and may offer aggressive discounting just to get a foot in the door with your company. There is no harm in asking for reduced fees, and if you are lucky, you may even be able to find a major national firm that will perform routine collection tasks at a very competitive rate.

This article is part of a series of columns on working with e-discovery consultants. Next month, I will consider in greater detail how in-house counsel should work with a consultant who may be required to testify on the completeness of a company’s production. 

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Matthew Prewitt

Matthew Prewitt is a partner in the Chicago office of Schiff Hardin, where he concentrates in complex litigation and also co-chairs the firm's Trade Secrets Client Services...

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