End-to-end and best-in-breed e-discovery resourcing methods each have their merits. Each matter brings a unique set of circumstances which makes it difficult to standardize approaches to e-discovery projects across the board.
What is the best approach to resourcing a dispute or investigation which involves the collection, analysis, review and production of electronic data? Decisions about e-discovery resources can be as complex as the litigations themselves. For example, you may require the global reach of a larger “end-to-end” or “all-in-one” provider to collect data in multiple jurisdictions. Or there may be a population of audio files to be processed for analysis which requires “best-in-breed” specialist software. And perhaps neither of those providers may have the skills to handle varied requirements for document review projects.
Each matter brings a unique set of circumstances which makes it difficult to standardize approaches to e-discovery projects across the board. Resource choices for e-discovery must be flexible and adaptable. Each decision has impact and may require unforeseen accommodations.
End-to-end, cradle-to-grave, womb-to-tomb or all-in-one… call it what you will, but a strong argument can be made for using one single e-discovery provider to service the entire lifecycle of a project.
For example, using one full-service, end-to-end provider may save time upfront from the standpoint of overall pricing, scope of work and finalizing contracts.
Advantages of using and end-to-end provider include:
- Potentially less negotiation and up-front administration;
- Limited points of contact for the law firm and end client; and
- E-discovery project manager and review manager potentially located in the same office, aiding communication and collaboration.
E-discovery service providers have long offered end-to-end solutions, bundling together services and technology to create efficiencies. Now, law firms have realized they must broaden out their efforts to provide more one-stop-shopping options for corporates. Recently, many firms are recruiting more e-discovery professionals to work in-house, particularly those with strong technical skills. In fact, a recent Exterro study showed that more than half of law firms (51%) are now moving litigation services in-house (see context in a recent report by APT Search).In some cases, technology is replacing the law firm’s or e-discovery service provider’s role in the e-discovery process altogether, making technology the end-to-end solution of choice. Evidence of this is the emergence of powerful cloud-based, self-service e-discovery technology tools which offer data processing, analytics, review workflow and production functionality. These do-it-yourself (DIY) tools allow corporate counsel to perform e-discovery technology tasks without hiring service providers or outside counsel law firms who may have historically managed their data. Some offer per gigabyte (GB) pricing models and per hour project management support. DIY solutions also enable and empower law firms to manage both client data and their own data for internal investigations and DSAR (data subject access request) responses.
However, this disaggregation of e-discovery services, with the law firm handling the core data management piece and an increase in outsourced managed document review, suggests that the end-to-end service may not be the optimum operating model.
A preference for the best-in-breed approach is an increasing trend. Advantages of using multiple best-in-breed providers include:
- Leverages the best expertise at each stage of a matter;
- Potential cost savings as the technology provider may not necessarily offer the best rates for document review where the bulk of the project spend is incurred;
- Technology requirements can change across matters so being locked in to one provider for all services may become counter-productive; and
Dovetails with organizations who handle the core task of data management in-house.
With a best-in-breed model, in-house counsel corporate clients assemble their own panel of preferred e-discovery technology and document review providers. Often the technology piece and the review work are awarded to different providers. To prevent communication gaps and redundant efforts between these suppliers, up-front planning defines the scope of roles and responsibilities of each stakeholder and establishes a communication protocol between suppliers. This plan frequently includes the law firms as well as e-discovery product and service providers.
If the choice is to use several specialist providers, processes can be designed to streamline the project initiation and kick-off stage, and provide integration and collaboration along the way. With strong process auditing, robust project management and clear communication between each party, there is no reason why clients cannot engage and benefit from separate providers for different stages of the disclosure or investigation lifecycle. The key is to realize that combining several disparate providers may leave gaps that need to be bridged by creative solutions.
Using the best-in-breed model, clients benefit from the experience of experts in each discipline and resourcing pressure points can be alleviated. Stakeholders work together as one team, within a clearly defined set of guidelines, for the benefit of the end client. For example, the outsourced document review team will be direct contact with the law firm, their e-discovery technology provider, and quite often the end client, too. Executed as such, these document reviews run in a seamless manner. It’s especially helpful when review project managers have cultivated strong relationships with the technology provider project managers, having usually worked with them before. When review teams begin work with a new technology provider, time must be invested up-front to understand their systems, workflow and preferred communication protocol.
One recurring objection to the best-in-breed approach (i.e. using multiple providers) is that it can present additional points of failure. However, quite the opposite may be true since having many providers examining the process creates a greater chance of identifying and correcting potential problems and inconsistencies. When there is more than one stakeholder, there are more sets of vigilant eyes watching the e-discovery process which can actually reduce errors rather than increasing them.
Corporate clients often find success by developing an e-discovery “playbook” which provides a framework for their law firms as well as technology providers and review partners. The playbook locks down the client’s preferred process in writing, keeping everyone on the same page, and effectively managing the collection, analysis and review of documents.
Bespoke E-Discovery Resourcing is Best
End-to-end and best-in-breed e-discovery resourcing methods each have their merits. Similarly, with document review the recommended approach is to create a bespoke strategy for each matter, structuring teams to include a mixture of qualified lawyers and paralegals, always working very closely in collaboration with the law firm, and or, the end client. For large-scale projects, successful operations have people, processes and infrastructure in place to support blended teams of offshore and onshore reviewers.
In conclusion, there is no one-size-fits-all when it comes to resourcing an e-discovery project. For some, the end-to-end service model works, and they see no need to change it. Others see the cost benefit and potential efficiencies to be gained in assembling a panel of trusted, specialist providers who work together to deliver projects. If corporate counsel sets its goals clearly at the outset of the e-discovery project, the resources can then be mapped to achieve those objectives and produce effective results.
Reprinted with permission from the January 13, 2020 edition of the Legaltech News © 2020 ALM Media Properties, LLC. All rights reserved.