July 27, 2016 Mike

Selecting E-Discovery Vendors: Cost vs. Process

In many cases, preparing for an e-discovery project also means selecting e-discovery vendors. Whether you are in-house or at a law firm, you will at some point to engage a service provider or consultant to provide or supplement resources for some aspect of or even an entire project.

I had the privilege of presenting on a panel recently at the Master’s Conference in New York City, and the discussion revolved around selecting e-discovery vendors. Here’s a short digest.

First Things First . . .

The first good idea in my view is to empower project managers to handle the vendor selection and oversight process. This removes from the attorneys or the client the burden of managing e-discovery vendors. A good project manager will outline the scope of work, help prepare cost and time estimates, and oversee the work of the vendor while reporting the status to the legal team throughout the project.

But before engaging a vendor it is also prudent to consider several safeguards. First, e-discovery vendors should sign a confidentiality and nondisclosure agreement before performing any services. This protects the confidentiality of client information. Second, perform a conflict check to ensure that the vendor is not currently engaged in work that is adverse to the client.

The Cost Factor . . .

Let’s get the cost factor out of the way early because the fact is that cost is rarely determines whether an e-discovery project moves forward. Costs are driven by a variety of factors, including the volume of ESI involved, the time it takes to complete a task, and the people and the tools involved in the project. Market forces and advances in technology have dramatically changed e-discovery costs. Years ago processing cost $2,500 per gigabyte. Today, processing costs are at least 90% cheaper. But keep in mind, too, that the best way to control the costs on a project is to in the first instance collect only the ESI that is needed and take steps during processing to reduce the volume of ESI.

But cost should not control the fate of a project. Each case and project turns on its own facts and while anyone involved in an e-discovery project will consider cost, at the same time they also understand that you mostly get what you pay for. Having competitive pricing models is sufficient.

In the end, stakeholders are concerned about the cost of e-discovery vendors and every effort should be made to control the costs; but there are criteria more important than cost.

Vendor Selection Criteria . . .

When engaging vendors, it is important to focus on the needs of the case and the client. We discussed some of these factors during our session at the Masters. Today, vendors need:

  • Capacity: Be staffed with a sufficient number of trained and experienced project management, technical, and support personnel and have the processes, software and infrastructure needed to support project needs;
  • Security: Have acceptable security protocols and processes in place, including safeguards to ensure not just physical security, but also the integrity and security of client’s ESI, both at rest and in transit;
  • Quality: Have standardized processes in place to check, validate and measure the quality of their services and all deliverables;
  • Service: A range of services and experiences, but not necessarily a one-stop-shop; and a consistent commitment to responsiveness, communication, change management, and problem solving;
  • Stability: Demonstrate a continuity of service and personnel and a level of financial security for the company as a whole;

These criteria are not laid out here in any particular order; nor should they be. Each should have roughly equal weight in the decision-making process. In the end, those who engage the services of vendors need to trust that the vendor is committed to each of these criteria.

Additionally, remember that sales people are not project managers. Some sales folks are talkative and at times pushy, but the fact is that most salespeople are not in the trenches doing the work and they probably should not be relied upon to discuss project specifics and deliverables. Instead, the sales representatives should hand the project off to a project manager who will manage the necessary tasks and processes to complete the project. Also, notwithstanding recent reports to the contrary, no one who values their job is making vendor selection decisions based on the number of coffees, dinners, or event tickets provided by the vendor.

Lastly, good e-discovery vendors provide a statement of work and a cost and time estimate that details the nature and scope of the work to be performed during the course of the project.

Conclusion

Selecting e-discovery vendors is a necessary component of projects today. It need not be an unpleasant experience. Of course, sometimes things go wrong on projects. If there were one criterion for selecting vendors, having solid processes would trump cost every time. The ability to execute, to monitor and measure, and adjust to change, fix errors, and build a solid partnership are some of the hallmarks of a quality service provider. Consider some of the guidelines above and the vendor selection process will be a little easier.

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