As ever more information becomes digitized, and new data sources like social media enter the equation, legal departments face ballooning e-discovery costs. While some companies have mitigated these rising expenditures by bringing e-discovery in-house, they still are faced with further reigning in this spend to meet stagnating or shrinking budgets.
In an effort to aid others, legal operations professionals from three large U.S.-based organizations spoke at the “Five Ways to Better Control Discovery Spend” session at the Association of Corporate Counsel’s (ACC) Legal Operations Conference and divulged how they met this challenge head on. While many used similar strategies, the way they executed these plans was unique and spoke to their own situations and preferences.
Here is a look at the strategies and processes they used:
Bank of America
For Judith Beall, associate general counsel & senior vice president at Bank of America (BOA), limiting e-discovery costs means having full control of each legal matter, from the beginning to the end of a case.
“What we do in BOA, when we have a matter open in our case matter system, whether it’s litigation employment, regulatory, or an internal investigation, is that we have someone on my team assigned to that matter at the very beginning. They are there from the very beginning before discovery even starts,” she explained. “So when we get to the point where we do legal holds or start collections or need to negotiate with the other side… we already have someone in place who knows the process, who has been working with our internal counsel and outside counsel figuring out what we’re going to do.”
The department, therefore, saves time and resources getting up to speed on the matter and preparing to meet e-discovery demands.
BOA’s legal department has also been implementing quality control and obtaining better efficiency in e-discovery by limiting the amount of e-discovery vendors it works with.
“We do, given the scope of our portfolio, have a large number of law firms, but we only have four e-discovery vendors, and each of those law firms has to use one of those four e-discovery vendors. And the data doesn’t go to the law firms, it goes to the vendor,” she explained. “Because of that, it helps the vendors know us and our processes,” and it also decreases the amount of funding to get a case up and running.
Kevin McCormick, senior litigation counsel at Groupon, sees saving on e-discovery spend as a mission in line with his company’s culture. “Groupon as a business exists to help our customer control external spend,” he said, noting that the in-house legal department looks to follow suit.
Towards this goal, “I think the number one way we’ve tried to [control e-discovery spend] is with communication with our outside counsel. [It’s about] really trying to have a dialogue with them,” he said.
Groupon’s legal department looks to communicate and assess their outside counsel’s performance through initiatives like a “scorecard program, where on a quarterly basis we’ve been giving out scorecards to our firms,” McCormick explained.
He said this is helpful in providing real time feedback and opening up a discussion on performance. The discussions started by issuing scorecards, which rate law firms on a scale from one to five, allow Groupon to make sure that its outside counsel know the best practices to which the company expects them to adhere.
“In a lot of instances, discovery parties will come to agreement that will keep the number of dispositions down,” McCormick said, explaining that his outside counsel should strive for such efficient processes.
Like Bank of America, Groupon’s legal department is also looking to limit the amount of e-discovery partners it works with to generate more efficiencies, though it also includes law firms in the downsizing as well. “Some of the issues that come up across different cases is there is a lot of time in getting [our outside counsel] familiar with our business,” McCormick said. He added, “The fewer firms we work with, we think we can get more efficiencies.”
The legal department at pharmaceutical company Abbott strives to reign in e-discovery costs through a combination of open communication with their e-discovery partners and visibility into their spend.
Peter Cladouhos, director and senior counsel of e-discovery and records at Abbott, noted that the company holds an “e-discovery day,” where all its e-discovery firms, providers, and stakeholders from all over the world come together “and we spend the whole day with them going over best practices, [in terms of] preservation, process, etc.”
He added, “If both vendors and outside counsel are working on the same page and understand our model, then things don’t tend to derail as often.”
The legal department also takes a proactive approach to managing its e-discovery spend by identifying and get rid of any related wasteful, extraneous expenditures. “In terms of cost, we scrutinize the bills,” he said, explaining that the company has “a dedicated team of people that scrutinize the bills, and we require UTBMS task codes with all invoices.”
These codes, he added, are pivotal in being table to better manage and understand just where e-discovery spend is going: “Without those codes, without those inputs, corporations have very little ability to track that information they are going to want later.”
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