E-discovery: 4 things your outside e-discovery professionals should know

Technology is far from the only ingredient that law firms need when providing services for in-house counsel

As we wrote in our last article, some law firms have created their own in-house or captive e-discovery service providers to support their attorneys. Firms that have adopted this strategy believe that their in-house e-discovery groups increase accountability to the client, improve performance and reduce client costs, while providing an opportunity to enhance firm revenue. These law firm groups give in-house counsel an alternative to outside e-discovery vendors, which which may rely on less efficient cost structures and limit their liability via contracts. (Law firms must be insured, thus providing an added measure of accountability.)

Law firms that have successfully adopted this model have done so because they know their strengths and, perhaps more importantly, their limitations. This is not a model for firms to learn on the job with client interests hanging in the balance. There is no black-box toolkit on the market that firms can simply buy to enable them to offer in-house e-discovery services. The following is an assessment of the steps a firm must take to successfully offer clients e-discovery services and achieve the “win-win” model. In-house counsel should be cognizant of these requirements when shopping around for a partner firm.  

1. Outside professionals must know the law.

First, successful law firm e-discovery programs require attorney and e-discovery professionals to oversee the entire e-discovery process, including litigation retention policy guidance, data harvesting, e-discovery data processing, document review and, ultimately, production. This means that law firm e-discovery professionals must not only be expert technologists, but also must remain current on court rulings and how they impact the practice of e-discovery, so that they can provide clients with defensible processes. E-discovery case law continues to unfold on a rolling basis, and an outside firm that does not keep its finger on the pulse of these changes will not be able to ensure a defensible process for its clients.  

2. Outside professionals must be willing to invest in their clients.

Maintaining a law firm e-discovery department requires attorneys to assist clients in ongoing litigation preparedness by developing effective records management (RMP) and email management (EMP) programs along with detailed mapping of all data sources. Mastery of these basics arms the law firm with the tools to ensure its clients retain only those documents needed to run the business, while discarding non-essential documents, which take up expensive storage space and increase the risk exposure and potential cost of future litigations.

To properly develop RMPs and EMPs, law firms must invest the time necessary  to understand the current policies and technologies that dictate record management and data retention practices within their client’s organization. Once familiar with the RMP and the client’s data sources, counsel can help the client more easily and defensibly implement a litigation hold when a dispute arises. The risk of spoliation is also reduced because litigation preparedness has been institutionalized as a key business strategy. Similarly, an enhanced understanding of the data provides counsel and the client a huge advantage when negotiating data sources, custodians, culling techniques and document production specifications at a meet-and-confer

3. Outside professionals must understand processing software and culling strategies.

Law firm e-discovery professionals also must understand how processing software works, as well as its limitations. Document collections must be defensible if challenged by opposing counsel, and professionals must process the data once they collect it. Proper use and knowledge of e-discovery processing software will allow counsel to defensibly cull the data prior to and during processing to reduce the amount of data that attorneys need to review.  

4. Outside professionals should focus on cost containment for their clients.

Finally, a law firm’s e-discovery services should help the company contain the rising costs of discovery. Proper electronically stored information (ESI) collection methods can greatly reduce the number of documents that need processing, hosting and document review, resulting in cost savings. In addition, the model a law firm chooses to charge its clients can result in significant cost savings. Some firms have elected to follow the vendor model and charge a per-gigabyte fee for processing and hosting of ESI, in an effort to become a profit center. Others have chosen to not charge hosting fees and only charge an hourly rate for the time their professionals actually work on the case. This latter model can result in enormous savings to the client while simultaneously allowing the firm to capture revenue otherwise lost to the vendor.

If a law firm is willing to invest in the right people and best technologies, it can successfully bring in-house a full suite of services that will properly prepare its clients for litigation, defensibly collect ESI, properly cull data collections and assist attorneys in review strategies that will lead to significant savings for their clients.  

Contributing Author

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Joseph Fogel

Joseph L. Fogel is a Partner at Freeborn & Peters and co-leads the Litigation Practice Group. His areas of focus include multiple areas of business...

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Contributing Author

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Michael O'Brien

Mike O’Brien is the Director of Litigation Technology at Freeborn & Peters LLP. He is responsible for creating, implementing and managing the firm's...

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Todd Ohlms

Todd J. Ohlms is a Partner at Freeborn & Peters and co-leads the Litigation Practice Group.  His practice involves advising and representing clients with respect...

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