Recent articles in the media report growing dissatisfaction of in-house counsel with their outside counsel’s handling of electronic discovery issues. As a result of this dissatisfaction, legal departments are placing equal emphasis on analyzing the credentials of their outside counsel’s e-discovery abilities as their substantive abilities to handle the dispute. In this article, we provide five practical tips to help in-house counsel identify the lawyers best equipped and prepared to efficiently and capably handle their e-discovery issues.
1. Search for a firm with a captive or in-house e-discovery practice and vet its history.
What was a traditional copy shop yesterday is supposedly a full-fledged e-discovery vendor today. Our inboxes are awash in solicitations from outside vendors professing to be a one-stop shopping place for every e-discovery service necessary. Too often, in-house counsel and their outside counterparts report serious dissatisfaction with the quality and cost of these vendors.
Realizing the devastating impact mistakes in e-discovery can have on the merits of a dispute, some law firms have gotten serious about the issue and created their own in-house or captive e-discovery service providers that support their attorneys. Firms that have adopted this strategy believe that the creation and use of in-house e-discovery groups increase accountability and consequently improve performance while, in some cases, simultaneously reducing their clients’ costs.
To be sure, simply finding a firm with an in-house e-discovery practice is not the end of the inquiry. The next step is to learn the history of the practice’s creation and development. Given the recent spate of firms that have chosen to create their own in-house e-discovery service offerings, you will want to make sure that you are not the test subject for a firm’s brand-new foray into the world of e-discovery services. Ask for examples of prior litigation and e-discovery issues handled not just by the firm’s litigators but also by the e-discovery group itself. Determine whether the practice has any case studies of how its performance and costs have stacked up against outside vendors previously used by the firm. To whom does the supervisor of the group report—a senior partner in the litigation practice focused on satisfying clients or a non-attorney staff member with a myopic focus on increasing today’s revenue?
All of these questions will help you separate the firms with long-established e-discovery service capabilities from those that are just beginning to experiment with the idea of creating and using their own practice groups for this important task.
2. Identify the credentials of the individuals supervising and working in the firm’s captive e-discovery practice and the technology they use.
Once you have a short list of firms with established in-house e-discovery service capabilities, your next step should be to identify the qualifications of the law firm employees who supervise and staff these groups. Do they have any relevant education, training or certifications, or are their qualifications identical to those of the paralegal staff? What are the technical capabilities of the group? Do they ever involve outside specialists?
For instance, in a dispute involving forensic e-discovery issues, it may be necessary to retain an outside specialist who can testify about the forensic chain of the data. If they are savvy enough to know when they need to retain outside specialists, ask them what criteria they use in that selection process. Other questions to ask include what technologies they use, what they do to keep abreast of developments in the industry and what they believe differentiates them from outside vendors.
These types of questions regarding abilities, training and expertise are often asked of the attorneys handling the substantive aspects of the case. Do not make the mistake of failing to ensure that the e-discovery professionals are similarly well-trained and qualified.
3. Ask the potential firms to identify all the fees and costs they charge in connection with their handling of your e-discovery needs.
Once you have narrowed down the list of qualified potential firms to handle your e-discovery matter, you should then make a serious effort to identify how the firms charge for handling your e-discovery preservation, collection, processing and production. Some outside law firms have jumped into the e-discovery game, sensing a new profit center, and the fees and costs that they charge reflect just that. Many firms that might not be so skilled at preventing over-collection of raw data from custodians or likely witnesses in the case will then go on to charge you a per-month storage fee per gigabyte of information collected and stored. Unfortunately, their mistake in collecting terabytes of irrelevant data is compounded when they then charge you to store that data during the pendency of the dispute.
They are rare, but some firms have chosen not to make their in-house e-discovery service offerings into a new profit center. Instead, they simply charge you a reasonable hourly rate for the amount of time the e-discovery professionals spend on activities such as identifying, preserving, collecting, processing and producing data. These firms reason that such a practice helps reduce the overall costs of e-discovery and the attendant litigation, which will keep their clients happy and coming back for additional legal services for future disputes. In our experience, those firms have aligned their values with those of their clients and, consequently, thrive.
4. Ask for representative matters that the firm has handled that involved complex e-discovery issues.
The most experienced internal e-discovery service providers will have a wealth of experiences from prior cases that they can use to illustrate their abilities. If the firm has made the mistake of not volunteering that information, ask the in-house head of e-discovery at the firm to identify some representative matters that she believes demonstrate the firm’s capabilities. Also, ask if there are any written judicial opinions that address the work of the firm’s e-discovery service capabilities in the context of the discovery motions that so frequently arise in e-discovery. Finally, ask if the firm has any standard protocol or best practices that it uses based on its experiences and how it ensures that those protocols are implemented in a consistent fashion.
5. Ask for client references specifically focused on the firm’s e-discovery service offering.
In-house counsel are already used to asking potential firms for client references before making a decision on who to retain for a specific matter. Besides asking for references related to the abilities of the firm to handle the underlying substantive issues, be sure that your request for references includes other firm clients who can speak to their prior experiences with the firm’s in-house e-discovery services and its practices.
In short, taking the time to thoroughly vet law firms that house internal e-discovery service capabilities can pay off significantly for in-house counsel. By conducting your due diligence, you can ensure that the firm you engage will not only do a good job tackling the substantive issues of a case but can reduce your company’s overall e-discovery spend while ensuring compliance with applicable procedural rules.