Few corporations have the internal resources or IT infrastructure to adequately assume responsibility for all potential services involved in an e-discovery project. Companies facing litigation will likely need to evaluate and eventually enlist service providers—or vendors—to facilitate their e-discovery obligations.
Some vendors consult on document identification and preservation issues, and others perform collections. Others process documents by taking the raw data and converting them into reviewable files. Vendors can manage document reviews and productions and even provide technology services and equipment for trials.
Although many service providers claim to be experts in e-discovery, not all of them are. It is therefore vital to find a competent and trustworthy vendor. Choosing a vendor should be approached in much the same way as selecting outside counsel. The temptation to find one “do-it-all” vendor may be strong, but it should be resisted. George Socha, president of Socha Consulting, cautions those seeking vendors to “recognize that we still live in a world of bespoke suits, not off-the-rack clothing.” In this industry, “one size definitely does not fit all, and the right fit matters tremendously,” says Socha. Therefore, before engaging a vendor, an organization, along with its counsel, should map out the scope and budget for the project.
How to find and get to know vendors
Among the ways to connect with vendors and learn about their products is to attend trade shows and conferences. Word of mouth is another method for identifying reliable vendors—a colleague with experience in e-discovery, and who has used a particular vendor, may be able to give a recommendation. It may be helpful to visit a vendor’s website, invite the vendor in for an interview or ask for a demonstration to get to know the vendor better. During these meetings, consider describing the specific problem or task and asking how the vendor would solve it. This puts the onus on the vendor to demonstrate how it stands out compared to the competition. In organizations with full procurement staff, it may be wise to solicit requests for proposal from a variety of vendors.
Having a knowledgeable evaluator greatly facilitates the vendor selection process. There are several important factors to examine when deciding on a vendor:
- Company stability/personnel: Is the company in sound financial condition? Is the vendor staffed with properly trained project management and sales personnel? If a company is in financial trouble or has a high turnover rate in its project management and sales groups, it might be best to look elsewhere.
- Security: Does the vendor have safeguards in place to ensure the physical security and integrity of its clients’ data? The last thing you want to encounter is a breach of security or damage to any of the company’s data.
- Infrastructure: Does the vendor have sufficient equipment and capacity to meet the needs and deadlines of the project? Good vendors will turn away work if they cannot handle it. You do not want to find your project out of scope, beyond deadlines and above budget.
- Process/methodology: Are there documented standardized practices in place to assess and report on a project’s scope, time and cost? Can the vendor measure and validate the quality of its services, processes and procedures? Are they using contemporary technologies? It is important that the vendor’s processes are organized, systematic and defensible.
- Geography: Where is your data kept? Some organizations may prefer that their data is (or is not) stored in a particular location.
A few best practices
After choosing a vendor, it is good practice to enter into a nondisclosure agreement before the vendor performs any services. This protects the organization as well as the confidentiality of its documents and data.
Also, consider signing a master services agreement with the vendor, which defines the nature of the relationship between the organization and the vendor and outlines the general services to be provided. Such an agreement may also include pricing models, billing terms and reporting frequency. For individual projects, however, it is best to document the work to be performed in a detailed statement of work, which includes the tasks or services to be provided and a cost estimate for the project.
One thing to look out for is vendors who contract work out to third parties. Subcontractors generally do not sign and are not subject to the nondisclosure or master service agreements. Therefore, it is imperative to inquire whether the vendor engages in this practice and to clearly define the relationship to ensure that those agreements adequately safeguard the company.
Lastly, most top-tier vendors will have a conflict-check procedure in place. But even if the vendor you’ve selected does not, provide the case caption or names of the parties and firms involved to the vendor for a conflict check as soon as possible after signing the nondisclosure agreement. Knowing whether the vendor you’ve chosen is also working with a company or law firm that is adverse to your interests is critical.
Choosing the right service provider can mean the difference between the success or failure of your project. These tips will hopefully help guide your selection.