E-discovery has become so central to the practice of law in traditional firms and corporate legal departments that it has developed into a specialized legal practice. Every case being litigated anywhere in the world today includes important e-discovery issues. And the field continues to grow as data storage and transmission technology continues to advance.
With e-discovery topics covering an ever-widening scope, what are the most important aspects of e-discovery that counsel and corporate executives should focus on to ensure they make the best decisions when partnering with e-discovery vendors?
The areas most deserving of attention when selecting the best e-discovery service vendor for an important project can be grouped into three categories:
While each of these categories contains elements essential to the success of a large-scale or technically complex discovery production, connecting with the right people is paramount.
Connecting with the Right People
The courts, clients, and boards of directors will not look to the e-discovery vendor if a party’s discovery response fails to comply fully with an order to produce all discoverable electronic documents, reveals confidential client communications, or discloses a privileged, proprietary trade secret. Counsel retains the responsibility for overseeing that results from a data trove search are filtered and reviewed before being produced.
Whether engaged in an internal corporate investigation, responding to a pressing government inquiry, or litigating a multi-district product liability case, the proper execution of e-discovery functions must be performed by a fine-tuned team of legal talent overseen by an expert project manager. Providing daily metrics reporting, spend transparency, and productivity tracking should be part of the vendor’s deliverables.
Leading e-discovery service providers have access to a network of licensed attorneys who are highly skilled project managers with ACEDS certification, many of whom also have exceptional expertise in highly specialized practice areas and hold additional certifications in other technologies. An executive or managing counsel consuming e-discovery services achieves success when they select a provider who will assign a uniquely qualified project manager to supervise the overall managed review process and act as a single point of contact for all communications and budget management.
When an e-discovery team is enlisted to perform a comprehensive document review, every team member must possess the expertise precisely adapted to the project and have the professional credentials, legal and technical education, and trustworthiness to serve the client’s needs. Getting the legal talent best aligned with the subject matter can mean the difference between obtaining a defensible presentation within budget and on time or learning too late that the team’s competence was beneath the required level to complete the process on the required schedule.
The ideal e-discovery vendor can reach immediately for fully licensed, certified legal talent with an advanced degree of expertise in legal matters as diverse from one another as anti-trust investigations are from the E.U.’s General Data Protection Regulation (GDPR). For that depth of talent, only vendors that have proven the ability to satisfy their clientele over many years should be considered.
The capacity to respond to changes midstream is another valuable asset legal talent vendors should possess. When an ongoing project shows signs of growing beyond original expectations, your legal talent vendor needs to be able to scale up without diminishing the expertise of newly added personnel.
Given the tight time constraints imposed on most e-discovery processes, conducting individual background checks, or confirming each candidate’s credentials becomes impractical for the consumer of outside e-discovery services. It’s imperative to find a service provider with a pool of fully vetted attorneys with extensive experience in the matter’s practice area is imperative if counsel intends to deliver a defensible discovery response.
People drive the success of e-discovery systems. The processes and technology we’ll discuss next are essential as well, but neither would function at a highly proficient level without the skill, experience, and devoted attention of the right legal talent.
Implementing the Right Process
Every successful e-discovery project must begin by identifying its objectives. The client and the prospective e-discovery vendor’s project manager must share the same understanding of the project’s goal. The vendor and the client must determine the material’s scope, the technical legal elements to be selected, the timeframe for delivery, and the budget during their preparatory discussions.
It can be an awkward transition blending outside legal talent with permanent employees. This should not affect the coordination between your e-discovery vendor’s project manager or document reviewers with any in-house or contracted IT professionals.
The outcome of those detailed conferences will inform which process will be employed to achieve the desired outcome with the speed, precision, and economy required by the mission parameters. The sensitivity of the data being searched will also influence whether the e-discovery document analysis can be performed remotely or must be executed on-site.
Drilling down deeper includes considering the format in which the results are presented, and whether production will be assigned to the vendor or will remain the client’s obligation. This and similar refinements of the procedure should be clearly outlined in the legal workflow established in consultation with the client at the outset of the collaboration.
All these steps will facilitate structuring a defensible and cost-effective discovery plan.
Employing the Necessary Technology
E-discovery technology has become more sophisticated in the last few years than most lawyers practicing in the area could have imagined. And it will continue to advance at phenomenal speeds in the future.
Technology-assisted review (TAR) was once a cutting-edge development but is now a routinely used, basic e-discovery tool. Now, the need to search through millions of documents and data points is common, and technology enabling hundreds of thousands of documents per hour to be uploaded, hundreds to be reviewed, and thousands to be coded no longer seems remarkable. With blockchain technology and cloud computing now daily fixtures, the limits of potential new e-discovery systems seem unlimited.
On the horizon are vast improvements in Artificial Intelligence (AI), increasing the speed and precision of relevant data identification, ultra-high-speed automatic coding programs, and other e-discovery efficiency enhancements.
But only the technology necessary to efficiently accomplish the goal of the client’s e-discovery project makes economic sense. Once again, identifying the client’s objectives during the initial consultation with an expert ACEDS-certified legal project manager remains essential.
Contemporary e-discovery technology was created to provide increased efficiency and economy in identifying the relevant data consistent with the parameters entered by technicians informed of the subject under review. The appropriate choice of technology to use with your e-discovery vendor’s collaboration depends on the volume of material being searched, the complexity of the relevant issues, the lifespan of the project, and the allotted budget.
Selecting the best e-discovery service vendor for your project will involve careful consideration of the factors outlined in this article. Remaining focused on the three most important aspects of e-discovery should lead you to the vendor whose people, process, and technology will produce the outcome you intended.