Considerations When Building e-Discovery

CONSIDERATIONS WHEN DESIGNING E-DISCOVERY PROCESSES, WORKFLOW, ANDTECHNOLOGY SOLUTIONS

David J. KearneyILTA Volunteer City Representative

May 23, 2013

SUMMARY With the exponential increase in ESI collection sizes,

the rapid changes in technology, the high expense of qualified personnel, and smaller clients with very conservative budgets and limited knowledge in the area of e-Discovery, all but the largest of firms need to seriously consider a myriad of options when bringing e-Discovery processes in-house or outsourcing the function or designing a hybrid model. There is no one-size-fits-all approach, but the large firms and small to mid-size firms need to approach the development of such services much differently.

Today, organizations are at a crossroads regarding managing components of the litigation lifecycle.

FOOD FOR THOUGHT Is it time to consider outsourcing at least

some of the functions that are currently provided in-house?

Is it time to consider bundling a good portion of services and solutions under a managed services arrangement?

AREAS TO BE COVERED

Organizational Culture Workflow

Maturity of Organization Cost Recovery

Risk Tolerance of Organization Project Management & Solution Evaluation

Internal Technology Infrastructure &Technical Complexity

Education & Training

SLA & Support Coverage Collections & Testimony

External Access to Internal Data Litigation Applications

Functionality & Advanced Functionality

Pros & Cons

Personnel Protecting the Organization

ORGANIZATIONAL CULTURE Will the firm culture support the commitment needed to build, run, and

manage an organization in-house?

Is the firm in a position to invest significantly in an area that is not their core competency?

How will the firm tolerate the learning curve and operational shift that will inevitably be encountered when building an internal department or outsourcing the function?

Commitment is needed from firm management, practice groups, and even information technology (especially when building the technology infrastructure in-house).

An insourced department must be handled as a business and just not billed at an hourly rate.

MATURITY OF ORGANIZATION Is there a size limit, monetary value, or deadline threshold that dictates when and how

an e-Discovery project is handled? There are times when additional help is needed by additional technology, more personnel, or

outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities. Unfortunately, sometimes due to circumstances the project must be or is forced to be managed in-house with limited resources to the detriment of the client, firm, and case.

Are there documented intake procedures?

Is data chain of custody documented?

Is evidence physically secured?

Is having an in-house e-Discovery service a strategic advantage to the firm or section?

Are the services provided value added, break-even, or profit driven? Value added e-Discovery services may not be sustainable in the long term due to the internal

costs that are absorbed. A profit driven model may become a detriment because a firm may not be able to be competitive with 3rd party service providers.

RISK TOLERANCE OF ORGANIZATIONAttorneys are Generally Risk Adverse

Law Firms are Generally Conservative & Cautious

Handling Compliance and Other Data Obligations

INTERNAL TECHNOLOGY INFRASTRUCTURE & TECHNICAL COMPLEXITY What kind of technical infrastructure will the firm support?

Disk space, servers, backup technology, disaster recovery locations need to support the amount of data that you may house.

Is the current network bandwidth sufficient to handle the network traffic between locations? The technology infrastructure costs to support a robust application suite and usage demands

requires a significant monetary investment.

Is the solution scalable? Could the organization add hundreds of GBs or TBs quickly? How scalable is the software?

What kind of software application(s) will the firm support? Standardize?

Is the software under regular development to include the latest bug fixes and technological advancements?

Does the software developer have the infrastructure to handle support requests, code changes/feature requests, and consulting?

Data sizes explode without warning, so is there a plan to expeditiously handle the needs?

SLA & SUPPORT COVERAGE Is there a defined Service Level Agreement?

Are there identified support personnel? Traditional Help Desk personnel may not be the best personnel to

handle e-Discovery or related application questions Attorneys & paralegals work beyond traditional 9- 5 or 8 – 10 hour

workday…so can a managed service provider offer better support, e.g. 24 X 7 X 365?

What is the firm and department expectations?

EXTERNAL ACCESS TO INTERNAL DATADo 3rd parties, such as co-counsel, experts,

clients want to be able to access the discovery data?

Does the organization have the required security protocols to manage external access while safeguarding other client and case data?

FUNCTIONALITY & ADVANCED FUNCTIONALITYExamine, evaluate, and make decisions on:

Processing

Culling – Deduping, Filtering, Keyword Searching

Searching, E-Mail Threading, Near Duplicate Identification, Clustering

Review – Humans & Technology Assisted Review

Productions

Litigation Hold Management

PERSONNEL What positions within the firm will be designated for Litigation Support/e Discovery?

What department will the position(s) report? IT, Litigation, Practice Support, KM, etc.?

How many personnel are needed?

What is the skill set, education, & experience required?

What is the compensation of the position(s)?

Does the environment support the salaries needed to keep qualified personnel interested, engaged, and dedicated?

Does anyone currently on staff, such as paralegals, have the required skills to transition to an e-Discovery, more technical, role?

Will the position(s) have a backup to accommodate vacations and peak workloads?

Will the position(s) be able to manage the workflow with vendors due to technical complexity, volume, or extremely tight deadlines?

Is there anyone willing at the senior management level to support the e- Discovery position(s)?

WORKFLOW Intake

Consulting

Solution Evaluation & Implementation

Project Management

Tracking of Requests

Tracking of Discovery

Quality Control

Productions

Archival, Closure, Destruction

COST RECOVERY

Are there cost recovery mechanisms in place to recover costs associated with the collection, processing/conversion/scanning, hosting, transfer, an production of data?

Are the costs being captured hourly, are they task oriented, or both?

Will the client base pay costs from 3rd party vendors, but not from the firm regarding e-Discovery services?

PROJECT MANAGEMENT & SOLUTION EVALUATIONProject Management (internal & external practices)

Consistency – Defensible and Repeatable

Transparency – Do you know where your project is at?

Solution Evaluation (when examining solutions)

Evaluation of Needs

Cost of Proposed Solutions/Methods

EDUCATION & TRAINING Is there a training program in place?

Are the attorneys, paralegals, and e-Discovery personnel enhancing their knowledge by learning about the latest techniques to manage e-Discovery, manage projects, collect data, reduce data, and process data?

Who provides the training for the review and early case assessment tools being used?

Knowing about the latest technology, best practices, and ways to better manage a project will certainly help manage costs, manage expectations, and better manage the case.

COLLECTIONS & TESTIMONYAccidental or purposeful mishandling of evidence can

lead to varying degrees of sanctions, including a default judgment, so knowledge of how to handle digital evidence is crucial.

Organizational personnel may need to testify as to how the data was handled, collected, and processed if the process was handled by internal personnel.

Managed Service Providers typically have personnel that can testify on collections & technical processes and assist at the meet & confer.

LITIGATION APPLICATIONS Is there an understanding that the software is only half the

battle when it comes to handling an e-Discovery project? The application(s) should be a part of the overall strategy of the e-

Discovery organization within the firm, whether supported in-house or outsourced. Once it is determined what functions need to be performed and how the service is delivered will determine the best application(s) for the job. Selecting an application should never be the first decision made when setting up the e-Discovery organization.

Software includes review, processing, presentation, and ECA/EDA & culling

PROS

Insourced Outsourced/Managed ServicesProfit Center (assuming it is run as a business)

Focus on Core Competency – Practice of Law

Ability to Write-Off Services More Easily Technological Complexity Handled More Effectively

Planning & Action Can Wait Until Closer to Last Minute Minimize Risks to Case & Organization “Comfort” that Data and Personnel are within 4-Walls of Organization Technical Headaches are Minimized Personnel within “Arms Reach” Minimizing Overhead Costs & Cost

Control More Flexibility in Choosing ad hoc Providers

Potential of Greater Realization/Recovery Rate of Fees/Less Write-offs More/Less Resources Being Able to be Utilized – Peaks and Valleys

Greater Agility

PROTECTING THE ORGANIZATION It may make a lot of sense to outsource the entire technology

infrastructure and services needed to support applications, servers, backups, software and hardware upgrades, storage space management, processing and hosting data, case consulting, and 24 X 7 X 365 availability and support.

All firms that practice litigation must have some sort of organization around handling e-Discovery. Software alone or a reactive plan will not position the firm to respond rapidly, consistently, or effectively to firm and case needs.

Regardless of how the services are provided, a firm must look at all of the components required and decide upon the best approach

ASK YOURSELF… Is your organization protected if personnel quit tomorrow?

Is your organization protected if a disaster strikes?

Are processes and matter history recorded?

Has a risk analysis been conducted to manage any issues or recover from potential risks?

Has a Cost/Benefit analysis been conducted to make a sound business decision?

Is the firm, client, or practice at risk by how things are currently being handled?

TIPS Don’t make a la carte/Rack Rate pricing a deterrent.

Weigh each provider with what matters to your organization, such as geographical location, financial strength, nimbleness, local/national reputation, availability/accessibility, relationship, etc.

Don’t assume that the data or process has to be within your organization’s 4-walls to be secure and available.

Managed Service Providers/Vendors have the ability and it is in their best interest to be creative when it comes to volume pricing, case type pricing, fixed-fee pricing, or usage pricing.

There is no perfect solution, either internally or outsourced, so keep in mind that no vendor or vendor solution is going to be a panacea, but it is how the vendor responds to issues that will make or break the relationship and arrangement.

Taxation of Costs will more easily recoverable when documentation of actual work and line-items costs, not just hours, exists.

Cost-Shifting may be easier to justify with quotes from a vendor that has cost metrics for tasks.

THANK YOU