Post Process

Everything to do with E-discovery & ESI

Selecting E-Discovery Vendors

Posted by rjbiii on September 27, 2007

Ahh…a favorite topic (likely…not)! And the second installment on our series on effectively managing e-discovery.

The first item of business is to determine why (or even if) you need a vendor. Vendors fill niches from pre-dispute planning (document management, records management, providing a litigation hold plan) to data collection, to pre-review filtering and searching, to EDD processing, to providing Web-based review platforms for attorney review, for production, and for running Trial presentation systems, and for a hundred things in between. Some projects, especially smaller ones, are completely handled by outside counsel. A few corporations have processing capabilities in-house as well. In looking at large e-discovery projects, the management team (whoever is making the decision) has various models of vendor selection from which to choose.

First, there is an approach similar to that of hiring a general contractor. A knowledgeable and experience person is hired for the position of coordinator, or project manager who manages the project, on behalf the client company. This could be an attorney specializing in e-discovery law and related areas, or could be an expert who concentrates on the technical processes involved. One of the advantages of this approach is that allows some insulation for both the client and outside counsel with regard to liability for improper methodologies and approaches. The other main advantage is the one most hoped for: that the project is run expertly and competently, and is therefore free of any errors that might result in any substantial inefficiencies during the project itself, or (worse) deficiencies in production. Disadvantages include a lack of control over the process, and the requirement of fashioning an effective method of hiring the right manager. Also, that insulation that might be provided is certainly not absolute, as the hiring decision, and any progress monitoring program should be conducted with the thought of them holding up to a court’s scrutiny down the road. More often, either outside counsel or in-house counsel, or one of the litigation support professionals attached to the law firm or client end up managing the project. Disadvantages to this approach include the exposure to liability for the manner in which the project was managed and for any defects in the production.

No matter who manages the project, someone will have to collect, process, cull, house, review, and produce the documents. This can be a one-vendor solution (usually except for the “review” portion, often the domain of contract attorneys) or it may be broken down by segment and divvied up to vendors based on criteria such as price, competence, relationships, or some combination of such factors. A one vendor solution may reduce problems associated with communication and different technologies, capacities, and methodologies. Multiple vendors working together on large projects often are forced to reconcile incompatibilities in data formats, and must communicate clearly and frequently to avoid undue inefficiencies during the project. Personality differences and natural competitiveness must also be put aside for the sake of the common good. I’ve seen examples where minor mistakes were blown out of proportion by vendors who, upon discovering the issue, sent e-mails to everyone in the project team trumpeting their discovery. On the other hand, there is a level of quality checking that is accomplished by this arrangement.

It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise. Both law firms and corporate legal departments should request extensive information from candidates that outline their qualities necessary to the tasks they will be eligible perform. Preferred vendor lists should be built, examined periodically, and modified according to ever-changing circumstances. The primary purpose of the process is to select capable vendors. An important secondary purpose, however, is to craft a process that can be defended should something go wrong.

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One Response to “Selecting E-Discovery Vendors”

  1. […] whatever he or she does to collect, process or produce the data may be scrutinized by the court. As we’ve previously discussed, this means that whoever hires the vendor must be able to defend the choice, to some degree. A good […]

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