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E-discovery: Managing litigation vendor costs and information flow

Retainer agreements, budget estimates and frequent communication can help to build strong relationships with service providers and consultants

Lawyers know that litigation, large and small, usually requires the assistance of a variety of non-lawyer vendors, service providers and consultants. These non-legal professionals can be the testifying or consulting experts who clarify technical aspects of the case. They can also be litigation service providers, such as the vendors that host your electronic data, or the court reporters who transcribe depositions. When our relationships with them are at their best, experts and service providers are essential partners. When these relationships go wrong, they cause headaches. There are three fundamentals to vendor relations: defining the terms of the relationship, managing costs and optimizing information flow.

1. Retainer agreements

It is unwise to assume that everyone understands their assignments and what is expected of them. The best way to avoid problems is to spell out all the details in the retainer. Make sure that your agreements address the following:

  • Work product. The agreement absolutely must state that you own all work product and all documents and data furnished to the service provider. All documents and data must be returned to the client at the end of the engagement upon request.
  • Scope of work. Be specific about the projects that you are being assigning. Including amendments and add-ons is preferable to paying the service provider for work you did not request and may not need.
  • Subpoenas and discovery. The service provider should notify you immediately if it receives a document demand or deposition subpoena involving the work it is doing on your behalf, and must allow you to provide the response.
  • How bills should be submitted. The retainer should include details about task codes, narratives and other billing guidelines. Tailor the bills to suit your needs, not those of the service provider. 
  • Point of contact. Designate one person to be the central point of contact for assignments and billing to streamline information and increase accountability.
  • Confidentiality. The retainer can either include confidentiality provisions or incorporate a separate confidentiality agreement.

 

2. Managing costs

The first step is to get a budget or estimate from your service providers. This seems obvious, but it’s remarkable how many times, in crisis mode, the budget becomes an issue after the assignment. A budget is only as good as the assumptions that go into it, which means that the actual spend can vary significantly if your assumptions are off. Some services are priced on a per-unit basis, in which the unit can be the number of documents copied or produced or the number of pages in a transcript. These units can seem rather predictable, but consider the cost of converting a native spreadsheet to a TIFF image; you won’t know how many pages result until it is converted, and each will need to be Bates stamped at a cost of a few cents per page. 

Budgets on a per-engagement level are highly susceptible to fluctuation, not to mention the inevitable surprises of litigation. Consider, instead, whether it makes sense for your service providers to give project-by-project estimates. Using this model, forensic accountants, for instance, would be asked to budget expenses related to a particular analysis. When they submit their bill, they would be expected to map their expenses back to that specific, previously approved project. In the progress of preparing the analysis, if they find that they are exceeding the budget, they must advise the lawyers ASAP and modify the budget accordingly. While this poses a bit of an administrative burden on the lawyers and the providers, it pays off in increased predictability over the long term. 

3. Information flow

The most conservative, privilege-conscious lawyers prefer not to have any communications with consultants and experts in writing. While this may shield attorney work product from discovery, it isn’t always practical and can stifle the flow of necessary information. Email is useful for routine conversations with experts and consultants and is perfectly acceptable for most communication with litigation service providers. Most lawyers engage in email communications, even with testifying experts, because the convenience and other benefits outweigh the risks of having to potentially produce the communications in the future. Even if you are rightfully concerned about the use of email and other written correspondence, recall that there are a range of secure communications options such as portals and SharePoint sites that allow you to share documents and objective, factual information without revealing your core litigation strategy. 

Portals, for instance, act as virtual file cabinets. An attorney can post a document to a portal for a testifying expert to access. Depending on how it is configured, the portal can generate an email to the expert witness after a document has been posted and reflect the date on which you posted the document. Portals eliminate the need to resend the same document to the expert several times if he misplaces it; they also take the guess work out of determining whether the expert has seen a certain document. Portals are available 24 hours a day, seven days a week, which makes them ideal if you are working with people in other time zones, or even other countries. 

An added benefit comes during the preparation of disclosures about the materials the expert used in reaching her opinion. Portals eliminate the need to comb through emails and binders to figure out which documents the expert received and considered. However, this requires that portals be used as the exclusive means to send an expert materials related to her expert testimony. It will only complicate matters if the expert and counsel have to look to the portal, email traffic and hard copy documents to come up with a definitive list. 

SharePoint sites, which are Microsoft web-based application platforms, are highly customizable and can be configured for a variety of uses. For instance, they can pull information from multiple outside data sources and display it for the lawyers, testifying experts and other service providers. They can track incoming document productions and provide instructions to the processing vendor about how to Bates label the production, where to store it on a document review tool and what processing is required. SharePoint can also create approval workflows for budgeting purposes, as described above.

Your goal in setting budgets, controlling costs and establishing clear lines of communication is not to punish the people who help lawyers do their job, but rather to make sure that the lawyers, not experts or consultants, are running the case. 

Contributing Author

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Judy Selby

Judy Selby has more than 20 years of experience in large scale first- and third-party complex insurance coverage matters, providing a full range of services...

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Contributing Author

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Brian Esser

Brian Esser, associate at BakerHostetler LLP, focuses his practice on complex and general civil litigation and corporate investigations. He primarily works in the area of...

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