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Preferred eDiscovery Providers for Corporations

Contributed by eTERA Consulting

 

 

 

 


Authors

Ashish Prasad, Vice President and General Counsel of eTERA Consulting

Ashish leads electronic discovery, document review and consulting services, including development and management of client engagements and expert work. Mr. Prasad is widely regarded as among the leading experts on discovery in the United States. He has served, among other things, as: Litigation Partner, Founder and Chair of the Mayer Brown LLP Electronic Discovery and Records Management Practice; Founder and CEO of Discovery Services LLC, a national document review company which was acquired by eTERA Consulting; Adjunct Professor of Law at Northwestern University Law School, where he has taught civil discovery and advanced topics in complex litigation; Executive Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production; Co-Editor in Chief of Electronic Discovery Deskbook: Law and Practice; Co-Editor in Chief of the The General Counsel’s Guide to Government Investigations; Board Member, Executive Editor of the Distance Learning Program, and Chair of the Diversity Committee of the Electronic Discovery Institute (EDI); and Co-Founder and Board Member of the Government Investigation and Civil Litigation Institute (GICLI). 

 

Todd Haley, Vice President of Strategic Solutions at eTERA Consulting

Todd works with the Client Delivery System (CDS) team and manages all processes, procedures and reports necessary to ensure the handling of all client eDiscovery and data management projects. Mr. Haley is a former Chief Technology Officer for a major national law firm. He is an Adjunct Professor on legal technology at Georgetown University and a frequent author and speaker on electronic discovery, litigation support and information technology. He was recently recognized by SmartCEO as a top CIO/CTO in the greater Washington area and is a SmartCEO Executive Management Award winner.

 

Vazantha Meyers, Managing Director of eTERA Consulting’s Rev1ew One®

Rev1ew One® provides and manages teams of legal professionals to review and analyze documents in litigation and investigation matters. Ms. Meyers has practiced law in the litigation and electronic discovery and records management practices at Mayer Brown LLP, and has extensive experience in consulting with corporations on best practices for electronic discovery. Ms. Meyers is a frequent authored on a variety of topics related to electronic discovery, including her contribution to the Practicing Law Institute treatise Electronic Discovery Deskbook: Law and Practice (2009), and an article on proposed Rule 502 for the Sedona Conference.

 


This article discusses the consolidation of a corporation’s eDiscovery requirements with a preferred eDiscovery provider, and outlines the steps that a corporation can undertake to accomplish the consolidation, thereby achieving the benefits of cost reduction, efficiency enhancement, and risk mitigation in the corporation’s eDiscovery requirements.

Introduction

Electronic discovery is the process by which organizations collect, process, search, filter, host, review and produce electronic information, for the purpose of complying with discovery rules in litigation and government investigations in the United States.

Large companies face substantial burdens and costs when meeting eDiscovery requirements, including, among other things:

 

  1. resources from corporate legal and information technology (“IT”) personnel to collect and process electronic information;
  2. fees from eDiscovery and document review companies to process, search, filter, host, review and produce electronic information; and
  3. fees from outside counsel to supervise and manage the eDiscovery process.

 

Moreover, the failure to achieve compliance with eDiscovery requirements can lead to sanctions in litigation and government investigations.1


Benefits of Consolidating eDiscovery Functions with a Single Service Provider 

In recent years, large companies faced with significant amounts of litigation or government investigations often have established a preferred eDiscovery provider to handle their eDiscovery requirements. Whereas in the past corporations split their requirements between an electronic data provider and a review provider, corporations today are moving towards a one-source, one-stop solution,2 which obtains processing, searching, filtering, hosting, reviewing and producing information from a single provider. Electronic data providers and review providers have converged in recent years, which has enabled corporations to obtain high quality, cost competitive services in both areas from a single provider, while also achieving communication efficiencies within project teams and a simplified administrative, cost and billing structure that can result from a single provider. Of course, corporations which have chosen a preferred eDiscovery provider typically have a secondary or backup provider in place for situations where conflicts arise, or the primary provider is otherwise not the best option.

For collections, most large corporations utilize their internal technology resources, and augment those resources with an outside provider in larger matters. The cost of outsourcing collections on a routine basis can be prohibitive for most large corporations.

Below, we discuss the major benefits that corporations achieve by consolidating their eDiscovery requirements with a preferred eDiscovery provider: (1) cost savings; (2) higher quality services; (3) improved risk management; and (4) better integration with clients and case teams.

Costs Savings

By selecting a preferred provider to handle its eDiscovery needs, a corporation can leverage its needs to lower the overall cost of the data processing, search, filtering, hosting, review and production requirements. Most eDiscovery service providers will provide lower, volume-discounted prices to those corporations which have named them a preferred provider. In addition, most eDiscovery service providers will provide innovative pricing solutions, such as eDiscovery data reuse and data rollover, to their major corporate customers.

Higher Quality Services

By selecting a preferred eDiscovery provider, the corporation is able to work with that provider to develop processes and workflows that are tailored to the corporation’s technology and legal environments, and therefore more likely to result in higher quality processing, hosting, search, filtering and review functions. Over time, the preferred eDiscovery provider will become deeply knowledgeable about, among other things: the types of litigation and investigation matters that arise; the types of data sources that are relevant to the matters and the unique features of the data sources from an eDiscovery perspective; the workflow expectations of the internal corporate team and how best to meet those expectations in the most efficient way; and pitfalls to be avoided in working with outside counsel for the corporation based on the different approaches toward eDiscovery taken by different law firms.

As an example, a long-term, consistent relationship between a corporation and a preferred eDiscovery provider can lead to the establishment of a litigation data repository. The litigation data repository houses data that has been collected, searched, filtered, hosted, reviewed and/or produced in matters, which reduces the need to perform these activities again if the same data is required for future matters. The use of litigation data repositories has been particularly cost effective for documents that have been reviewed for privilege; the coded documents that are part of the privileged document repository can be re-purposed, as appropriate, in future matters, reducing the need to re-review those documents in the future matters. Through the service provider relationship, corporations do not have to incur capital expenses to create the repositories themselves, and do not have to commit internal personnel and increase operational expenses to manage the repositories.

Improved Risk Management

Corporations that establish a preferred eDiscovery provider will reduce their eDiscovery risk in multiple ways.

First, data management risks will be minimized by having the corporation’s discovery data with one service provider rather than multiple service providers. By allowing the data from the corporation to go to multiple places, a corporation opens itself up to a variety of possible issues, such as data breaches, lack of security and non-regulated retention. When a corporation has data at multiple locations, each of those locations may need to be vetted, tested, reviewed, and monitored to ensure that the data hosting provider maintains appropriate security compliance, even after the initial screens. By limiting the number of providers to a single source, corporations can focus their security efforts and requests on a single entity.

Second, the preferred eDiscovery provider provides reports that will enable the corporation to get a full and complete view of its data across all litigation and investigation matters through the different stages of the discovery process. Utilizing customized, specific dashboards and data visualizations, and early case assessment tools, the corporation can better assess eDiscovery trends and risks, and monitor and manage costs, across the entire litigation and investigation portfolio.

Third, a corporation that has established a preferred eDiscovery provider can leverage that relationship to establish policies and procedures for the participants in the eDiscovery process to follow, reducing the expense of hiring outside professionals to develop the policies and procedures. The policies and procedures, which can be codified in an eDiscovery Manual and Standard Operating Procedures, can provide resources of forms, discovery responses, and checklists for eDiscovery projects. Having a centralized source for these policies, procedures and resources allows for a consistent and efficient response to eDiscovery matters, avoids “reinventing the wheel” across cases, and, should the company be called before a court or government investigator, provides an enhanced ability to demonstrate that defensible practices were followed.

The policies and procedures could include, among other things: roles and responsibilities for members of the discovery team; and standard operating procedures for key tasks, such as issuing legal holds, identifying “key persons” from whom custodial information should be collected, imaging hard drives, collecting information from email archives and databases, coordinating between members of the discovery team (including between corporate IT personnel and the eDiscovery service provider), monitoring the progress of discovery projects, and developing documentation evidencing the discovery procedures utilized.

Better Integration with Clients and Case Teams

Finally, a major benefit of establishing a preferred eDiscovery provider is that it enhances integration between the corporation’s legal department, outside counsel, and the eDiscovery provider when eDiscovery arises in litigation and investigations. This integration makes for a smoother eDiscovery process and reduces the possibility of errors and miscommunications between the participants in the process, especially when the eDiscovery Manual and Standard Operating Procedures have been developed and the participants have been trained on the corporation’s eDiscovery policies and procedures.


Steps to Consolidate eDiscovery Functions

The process for consolidating a corporation’s eDiscovery requirements with a preferred eDiscovery provider is straightforward and can be accomplished by leveraging the personnel of the provider without imposing substantial burdens on internal corporate personnel.

First, the corporation should gather facts to understand, among other things:

 

  1. the current level of spending on electronic data discovery and document review requirements;
  2. current costs for software and internal labor relating to electronic data discovery;
  3. features of the email system at the company, which will impact future electronic data discovery requirements;
  4. features of the legal hold process at the company, which will impact future electronic data discovery requirements;
  5. where the corporation’s discovery data is currently being hosted, how the data is being stored, searched and filtered, and at what cost; and
  6. where the corporation’s discovery data is currently being reviewed, how it is being reviewed, and at what cost.

 

Second, the corporation should select a preferred eDiscovery provider. The service features and pricing options offered by the preferred eDiscovery provider have been discussed extensively by us elsewhere.3 While a corporation may elect to utilize a formal procurement process to select a preferred eDiscovery provider, involving a Request for Proposal and evaluation of competing bids from service providers, it is often possible to have a shorter, more informal process to select a preferred service provider, which may yield a similar result as a more formal process while reducing the required time and resources from the internal corporate team.

Third, the corporation should work with the preferred eDiscovery provider to consolidate the eDiscovery requirements with that provider. It will be important to establish a data consolidation and transfer plan that accounts for the locations of the data and any limitations on the transfer of the data.

Conclusion

Consolidation of a corporation’s eDiscovery requirements with a preferred eDiscovery provider achieves major benefits in terms of cost reduction, efficiency enhancement and risk mitigation in the corporation’s eDiscovery requirements. The consolidation can be accomplished efficiently and effectively by utilizing a fact gathering, provider selection and consolidation process that is implemented by personnel from the eDiscovery provider under the management of internal corporate personnel.




1 See FED. R. CIV. P. 37(f); see also The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, Principle 14, 194 - 198 (forthcoming 2018).

2 “One source” means that a corporation selects one service provider to handle all of its eDiscovery needs, except in the case of a conflict. “One stop” means that the service provider either must provide, or manage the delivery of, all necessary solutions for the corporation’s eDiscovery needs.

3 See, e.g., Ashish Prasad, et al., “Technology-Assisted Review of Documents –- Must-Know Workflows and Roles for Attorneys,” The Computer and Internet Lawyer (April 2016); “Utilizing Contract Attorneys for Document Review,” Facts and Findings (NALA, July/August 2015); “Understanding the Process: Tools and Techniques for Defensibly Processing Electronic Data,” The Corporate Counselor (LJN, December 2012); “Collect to Protect: Processes and Technologies for Electronic Data Collection,” Digital Discovery and e-Evidence (BNA, September 2012); “Problems and Solutions in Electronic Discovery,” Digital Discovery and e-Evidence (BNA, January 2011).