Taking control of the e-discovery process (Part 2)

Why should in-house counsel direct, manage and control the service provider landscape used to provide support services for all outside counsel engaged by the organization?

In Part 1 of this series we discussed the challenges that in-house counsel are facing in managing their litigations effectively and efficiently. We outlined several reasons and then posed the questions to which we will provide some answers and clarification. The primary question in Part 1 was, “Why should the organization proactively direct, manage and have access to the technology and relevant repositories being used by outside counsel?” This installment asks the following: Why should in-house counsel direct, manage and control the service provider landscape used to provide support services for all outside counsel engaged by the organization?

We recognize there is a plethora of technologies and service providers that offer support services around litigation efforts. Every law firm that provides litigation services will have installed and available some technologies that are supported internally, and/or they will have preferred service providers ready to take on the necessary services. In Part 1, we pointed out the significant benefits gained when an organization proactively manages discovery rather than relinquishing control to outside counsel. Specific benefits are similarly substantial when the organization manages and controls the service provider landscape. Specifically, the organization can:

  1. Effectuate cost controls with the multiple outside law firms engaged to support various matters
  2. Find better value and purchasing power for vendor services
  3. Manage selected vendors and develop the vendor landscape that best fits the organizational requirements around litigation needs
  4. Control all the pass-through costs associated with the full range of vendor-related services, including processing, document conversion and use of review technologies

There is a vast array of products, services, pricing options, features, etc., to consider. With regard to how outside firms manage the technology and litigation support for an organization’s legal matters, in-house counsel should be asking the following:

What steps do we take to achieve these benefits?

1. Outline completely all the issues that the organization faces when attempting to fully support all of its litigation efforts

Without an inventory of issues faced when litigation arises, an organization will not be adequately prepared to source, evaluate or select its own litigation support solutions. The inventory may include:

  1. How information is managed around legal hold and preservation efforts
  2. How the information is collected, both domestically and internationally
  3. Multi-jurisdiction matters — both domestic and international
  4. Multiple discovery efforts around similar issues and similar document and data sets (“overlapping holds”)
  5. What technology and application landscape is involved
  6. What are the organization’s records and data management policies, and are they enforced?
  7. What is the organization’s social media policy?
  8. Internal review requirements of discovery materials during the entire process

While this list is not exhaustive, the focus here is to develop enough to inform the basic requirements necessary for the organization to identify and select the support, technology and expertise it needs.

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2. Identify and vet providers who can fulfill identified needs

Once the organization understands and documents its requirements, its effort will be to match those needs to, and engage with, the service providers that have the required expertise. The focus is to have a direct connection with the service provider, not to rely on outside counsel to facilitate the efforts. Among the requirements is to develop efficiencies around building knowledge and developing processes that are repeatable and consistent across all litigation support efforts. The organization may need to look at several service providers to ensure that all the needs can and will be met.

3. Leverage the organization’s buying power

Too often organizations do not realize that buying litigation support projects one-off through law firms does not maximize their litigation support purchasing power. They can maximize the value of discussions with service providers by understanding how much they have spent historically and how much they envision spending on these services either directly or through law firm pass-through. Organizations that take the time to understand what historic and projected charges might be can negotiate aggressively with selected service providers and realize significant cost reductions.

4. Manage and enforce among outside counsel the use of its preferred service providers

The most important factor will be to ensure that all outside law firms engage all relevant services with only those providers contracted by the organization. The efficiencies to be realized may be obvious but still warrant stating:

  1. All charges will be based on the negotiated pricing and as such there should be no surprises
  2. Budgets should be easier to compile since pricing is known
  3. The legal teams can accelerate projects as they no longer have to vet new vendors for new matters
  4. Service providers become increasingly familiar with the corporate requirements and the workflows and processes associated with their projects, and as a result, provide more consistent and dependable execution
  5. The software application used for privilege and production review (and post-production deposition and motion practice) is consistent for all matters for that organization, ensuring that in-house counsel have the access they require, are familiar with its use, and do not have to waste time learning new applications
  6. The organization can control the data flow where there are multiple firms engaged across multiple matters. The organization understands who needs access to what data and can provide access without having to re-collect or duplicate data

Our final installment will address, “What is the benefit to the organization to take control of processes that have historically been left in the hands of outside counsel? Why is it in the best interest for in-house counsel to regain control over costs and manage the knowledge and work product developed during the consumption of evidentiary materials?

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Olivia Gerroll

Olivia Gerroll is Vice President at D4 and has over 24 years of experience and recognition in leading global litigation and e-discovery strategy and management...

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