Selecting an e-Discovery Provider That Meets Your Needs

The potential size of today's data sets, the ease with which electronic files can be altered and the complexity of these projects in general makes selecting the right e-discovery provider a high-stakes game.

Here's the kind of negative exposure that counsel risk by outsourcing an electronic-discovery (e-discovery) project to the wrong service provider:

• Missed deadlines;
• Out-of-control costs;
• Incomplete or inaccurate work product (or both);
• The wrong solution for the job at hand; and
• Spoliation and adverse-inference claims. 

The Need to Know, And to Check

This year has seen a continuing proliferation of companies claiming to offer state-of-the-art e-discovery services in response to rising volume and variety of e-discovery needs. It is dangerous to assume that all these companies were created, and have remained, equal. Companies come to the bargaining and working table with vastly different levels of experience and capability, from those possessing significant knowledge and experience to those that have simply recognized a growing potential market on which they want to cash in.

When faced with selecting an appropriate e-discovery partner, the following considerations should be measured as part of due diligence. Remember that the only way to ensure satisfaction in selecting a provider is to confirm up front that the vendor is an appropriate match for the task at hand.

Determine Exactly What You Want

Selecting from among the myriad of service and product options can be daunting. Start from the realization that no one option will meet all of your e-discovery needs. It's imperative, then, to understand the “question” before beginning your search for a solution. It's also critical that you determine what your most important buy criteria are. The genesis of this list should come from the short- and long-term strategic needs of the case itself.

To better understand your buy criteria, it's helpful to start from the end of the project and work your way back. Instead of focusing on the individual services and cool widgets a salesperson offers, concentrate on the totality of your mission and what must be accomplished to get the job done. Start by determining just what you are in the market to procure. Ask yourself these questions:

• Is your need limited to computer forensics?
• Do you need scanning and coding services as well as electronic processing?
• What type of review does the firm intend to perform (ie, paper or electronic)?
• What are the critical timelines in the case and will these affect the choice of vendor?
• Are you looking for a company that can lead you through the entire process ' from collection and processing of electronic data to the review and analysis of the information found with the document collection itself?

Because it isn't feasible to list every possible buy criteria ' and each case has its own unique list ' you can use a short list of highlights to consider. The following list can serve as a kind of buy-criteria crib sheet:

• Speed and capacity;
• Chain of custody and security of data;
• Thoroughness and accuracy of the processing tools used to create the review database (they are not all the same);
• Online repository-review tools;
• Native review versus PDF, TIFF or HTML;
• Advanced search capabilities vs. simple Boolean capabilities;
• Production strategies and abilities;
• Qualifications of the provider to act as an expert witness; and
• Price.

The following points will also go far in helping you select a provider of e-discovery services. Weigh these general, and important, considerations ' plus any your specific firm, clients or project needs ' carefully, and consistently. Remember: Preparation helps seal success.

Look For Experience

No matter how well-intentioned a provider may be, it's impossible to replace real experience. Ask yourself whether you want your vendor to be “learning on your nickel.” e-Discovery is a very complex and highly specialized discipline, one in which small mistakes can have disastrous consequences. Not all data is clean. Projects that appear straightforward at the beginning often become significantly more difficult later on, and you will want a provider that has the tool kit to deal with your data, regardless of its complexity.

People Matter

While e-discovery is the technological cutting edge of litigation-support services, the quality and effectiveness of the process still ultimately boils down to the people involved. When reviewing possible providers, demand to see bios of key employees. Also, request a say in picking the project manager assigned to your work. Make certain this is a person with whom you believe you can work comfortably and effectively. After all, you could be spending a great deal of time interacting with this person, and the success of that interaction will have a direct bearing on the success of your e-discovery activities. That person's attention to detail, communication skills, knowledge and ability to manage your risk will be critical to your interests. The project manager you select should be your single point of contact and should be available to you beyond whatever working hours your enterprise recognizes as standard ' and those of the provider company.

Focus on Vision

Have the vendor explain what strategies it can bring to bear to reduce your data-collection burden and to increase the efficiency of the review when the system goes live. These discussions are excellent opportunities to gauge how the vendor perceives the project, and whether the vendor and its employees are up-to-date on e-discovery developments, and developments in the e-discovery support sector. Often, their ideas may lead you to rethink your project with more efficient methods and better results ' or to alter your buy criteria or refine your vendor-search strategy.

The Significance of Analysis

Today, the size of the data sets produced in e-discovery is exponentially larger than those related to their paper predecessors. This has skewed the economics of discovery and has strained the resources of even the largest law firms and corporations. For this reason, analytical tools have become more important than ever. A new wave of advanced search capabilities and visualization tools is helping make sense of data more accurately than traditional approaches to review have until now provided.

It's important to realize, though, that these tools are not a magic bullet; rather, they should be considered and, if used, carefully integrated into the firm's overall document-review strategy. If these tools are new to your firm, then inquire whether or not the vendor has the capability to assist you in demonstrating the potential cost-efficiencies that could be gained through the application of these new tools. Although the use of these tools may make sense, convincing your clients that they should use them may well depend on building a financial case that cannot be ignored.

Additional Capabilities

We all know that the scope of projects frequently changes; one adverse decision by a judge during the discovery phase can dramatically affect project size and scope. You may, for instance, have selected a provider based on what you knew at the time of the original engagement, but what happens if your scope changes? Must you return to the drawing board? Before deciding that, and scrapping the work you've done to that point, find out whether your provider has developed strategic alliances that will come into play should the scope of your project expand, or otherwise change. Ask yourself whether the vendor can reach out and expand capacity and capabilities with strategic alliances and whether the vendor would be a willing partner in such activities. Then ask the vendor the same questions, and secure definite, specific answers, preferably committed to a written business plan or proposal, if not to a formal contract.

Check References

References can key you into how the vendor conducts its business affairs. Demand the names of and contact information for at least three firms that used the potential vendor for projects of scope similar to yours. Determine whether:

• The vendor's internal capabilities align with its marketing claims;
• The vendor appears to have performed as agreed;
• The principles in the vendor company ' or key employees or contractors assigned to e-discovery projects ' communicated effectively, efficiently and in a timely manner; and
• The company was committed to customer satisfaction.

You might want to go a step farther and ask for a few personal references for the project manager who would be assigned to your project.

Compare

No matter how busy you are, interview more than one vendor. Compare their approaches, industry knowledge and capabilities to make the best selection. Don't sell yourself, and your clients, short by not following through on a well-planned vendor-selection process, including this important step of due diligence. Satisfaction, and success, demands it.

The potential size of today's data sets, the ease with which electronic files can be altered and the complexity of these projects in general makes selecting the right e-discovery provider a high-stakes game.

Here's the kind of negative exposure that counsel risk by outsourcing an electronic-discovery (e-discovery) project to the wrong service provider:

• Missed deadlines;
• Out-of-control costs;
• Incomplete or inaccurate work product (or both);
• The wrong solution for the job at hand; and
• Spoliation and adverse-inference claims. 

The Need to Know, And to Check

This year has seen a continuing proliferation of companies claiming to offer state-of-the-art e-discovery services in response to rising volume and variety of e-discovery needs. It is dangerous to assume that all these companies were created, and have remained, equal. Companies come to the bargaining and working table with vastly different levels of experience and capability, from those possessing significant knowledge and experience to those that have simply recognized a growing potential market on which they want to cash in.

When faced with selecting an appropriate e-discovery partner, the following considerations should be measured as part of due diligence. Remember that the only way to ensure satisfaction in selecting a provider is to confirm up front that the vendor is an appropriate match for the task at hand.

Determine Exactly What You Want

Selecting from among the myriad of service and product options can be daunting. Start from the realization that no one option will meet all of your e-discovery needs. It's imperative, then, to understand the “question” before beginning your search for a solution. It's also critical that you determine what your most important buy criteria are. The genesis of this list should come from the short- and long-term strategic needs of the case itself.

To better understand your buy criteria, it's helpful to start from the end of the project and work your way back. Instead of focusing on the individual services and cool widgets a salesperson offers, concentrate on the totality of your mission and what must be accomplished to get the job done. Start by determining just what you are in the market to procure. Ask yourself these questions:

• Is your need limited to computer forensics?
• Do you need scanning and coding services as well as electronic processing?
• What type of review does the firm intend to perform (ie, paper or electronic)?
• What are the critical timelines in the case and will these affect the choice of vendor?
• Are you looking for a company that can lead you through the entire process ' from collection and processing of electronic data to the review and analysis of the information found with the document collection itself?

Because it isn't feasible to list every possible buy criteria ' and each case has its own unique list ' you can use a short list of highlights to consider. The following list can serve as a kind of buy-criteria crib sheet:

• Speed and capacity;
• Chain of custody and security of data;
• Thoroughness and accuracy of the processing tools used to create the review database (they are not all the same);
• Online repository-review tools;
• Native review versus PDF, TIFF or HTML;
• Advanced search capabilities vs. simple Boolean capabilities;
• Production strategies and abilities;
• Qualifications of the provider to act as an expert witness; and
• Price.

The following points will also go far in helping you select a provider of e-discovery services. Weigh these general, and important, considerations ' plus any your specific firm, clients or project needs ' carefully, and consistently. Remember: Preparation helps seal success.

Look For Experience

No matter how well-intentioned a provider may be, it's impossible to replace real experience. Ask yourself whether you want your vendor to be “learning on your nickel.” e-Discovery is a very complex and highly specialized discipline, one in which small mistakes can have disastrous consequences. Not all data is clean. Projects that appear straightforward at the beginning often become significantly more difficult later on, and you will want a provider that has the tool kit to deal with your data, regardless of its complexity.

People Matter

While e-discovery is the technological cutting edge of litigation-support services, the quality and effectiveness of the process still ultimately boils down to the people involved. When reviewing possible providers, demand to see bios of key employees. Also, request a say in picking the project manager assigned to your work. Make certain this is a person with whom you believe you can work comfortably and effectively. After all, you could be spending a great deal of time interacting with this person, and the success of that interaction will have a direct bearing on the success of your e-discovery activities. That person's attention to detail, communication skills, knowledge and ability to manage your risk will be critical to your interests. The project manager you select should be your single point of contact and should be available to you beyond whatever working hours your enterprise recognizes as standard ' and those of the provider company.

Focus on Vision

Have the vendor explain what strategies it can bring to bear to reduce your data-collection burden and to increase the efficiency of the review when the system goes live. These discussions are excellent opportunities to gauge how the vendor perceives the project, and whether the vendor and its employees are up-to-date on e-discovery developments, and developments in the e-discovery support sector. Often, their ideas may lead you to rethink your project with more efficient methods and better results ' or to alter your buy criteria or refine your vendor-search strategy.

The Significance of Analysis

Today, the size of the data sets produced in e-discovery is exponentially larger than those related to their paper predecessors. This has skewed the economics of discovery and has strained the resources of even the largest law firms and corporations. For this reason, analytical tools have become more important than ever. A new wave of advanced search capabilities and visualization tools is helping make sense of data more accurately than traditional approaches to review have until now provided.

It's important to realize, though, that these tools are not a magic bullet; rather, they should be considered and, if used, carefully integrated into the firm's overall document-review strategy. If these tools are new to your firm, then inquire whether or not the vendor has the capability to assist you in demonstrating the potential cost-efficiencies that could be gained through the application of these new tools. Although the use of these tools may make sense, convincing your clients that they should use them may well depend on building a financial case that cannot be ignored.

Additional Capabilities

We all know that the scope of projects frequently changes; one adverse decision by a judge during the discovery phase can dramatically affect project size and scope. You may, for instance, have selected a provider based on what you knew at the time of the original engagement, but what happens if your scope changes? Must you return to the drawing board? Before deciding that, and scrapping the work you've done to that point, find out whether your provider has developed strategic alliances that will come into play should the scope of your project expand, or otherwise change. Ask yourself whether the vendor can reach out and expand capacity and capabilities with strategic alliances and whether the vendor would be a willing partner in such activities. Then ask the vendor the same questions, and secure definite, specific answers, preferably committed to a written business plan or proposal, if not to a formal contract.

Check References

References can key you into how the vendor conducts its business affairs. Demand the names of and contact information for at least three firms that used the potential vendor for projects of scope similar to yours. Determine whether:

• The vendor's internal capabilities align with its marketing claims;
• The vendor appears to have performed as agreed;
• The principles in the vendor company ' or key employees or contractors assigned to e-discovery projects ' communicated effectively, efficiently and in a timely manner; and
• The company was committed to customer satisfaction.

You might want to go a step farther and ask for a few personal references for the project manager who would be assigned to your project.

Compare

No matter how busy you are, interview more than one vendor. Compare their approaches, industry knowledge and capabilities to make the best selection. Don't sell yourself, and your clients, short by not following through on a well-planned vendor-selection process, including this important step of due diligence. Satisfaction, and success, demands it.