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.

E-Discovery Project Management: Ask Forgiveness Not Permission

When the leadership at ACEDS asked me to coordinate a project management panel for their 2016 E-Discovery Conference, held April 19-21 at the Grand Hyatt in New York, it occurred to me that few people in the legal business discuss project management in the same sentence with electronic discovery. When the subject does arise you’ll hear phrases like Legal Project Management tossed around rather loosely, or you may hear talk of organization-wide efforts to generally make process improvements. Mostly, it’s about law firms or corporate legal departments and how they might find ways to be more efficient.

But organization-wide project management initiatives require high-level buy-in and lots of resources and coordination. I don’t believe such resources are required in project management, particularly in the context of e-discovery projects. And I don’t believe permission is needed either. Do you need approval to save money? To reduce risk? To implement, efficient, defensible processes for managing electronic discovery projects?

So, for the ACEDS panel, it made sense to focus on project management in the context of e-discovery. We began the panel discussion from these questions as our premise, with the objective of demonstrating how to improve project management processes in e-discovery.

I’ve had numerous conversations about how project management processes can be used to manage e-discovery projects. It’s a little puzzling to some at first because, after all, we have the EDRM framework, right? Doesn’t that framework provide guidance? Now we’re going to introduce project management methodologies too? People say it’s confusing. I get it –what does project management have to do with e-discovery? Instead of a single framework –the time-honored EDRM—now we have to use a second framework?

Not to worry. The project management and EDRM methodologies are easily combined into a single framework. Let’s look at how that might be accomplished.

In a typical e-discovery project, we move from left to right across the EDRM from Information Governance through Presentation.

Electronic Discovery Reference Model (E-Discovery) (EDRM)

There are likely to be iterative processes, like review and analysis. But anyone in our business knows that e-discovery projects don’t always move forward in such a linear fashion. Issues arise on a case-by-case basis that change the project scope, timing, and cost. Still, generally speaking, progress is from left to right. But what if we took away the right to left motion of the project?

Before we answer that, first let’s look at the project management lifecycle. Project management depends upon five process groups and ten knowledge areas that help to organize all projects. Like the EDRM, the PM process groups move linearly in an orderly manner from Initiating through Closing.

PM_PROCESS_GROUPS
What if we take the basic elements of the EDRM and then insert the project management processes in a way that integrates the two into a new process framework that ensures each e-discovery phase is handled in standardized manner? What would this new Electronic Discovery Project Management model look like? Probably something like this:

E-Discovery Project Management Workflow

This new eDPM model requires thinking about each node of the EDRM as a sub-project of the larger e-discovery project. And instead of a right to left workflow, it requires that we think about the process in a down-and-over workflow. In this way, it is possible to integrate the project management process groups and all of the attendant principles and practices into the workflow.

Admittedly, this is a high-level illustration. This new eDPM model will require some elucidation, and or course some PM principles may not apply in e-discovery. But in the end this is a working methodology and it provides for a sound defensible process that recognizes the primary components of e-discovery and project management.

Some might argue that Information Governance is the foundation of an e-discovery project –how can IG be ignored? I do not disagree. We’re not ignoring IG. This eDPM model takes into account that IG involves many moving parts, policies and practices. Most corporations, law firms, and service providers have less than mature IG programs and they are not going to be prepared to undertake, least of all during the midst of an e-discovery project, the design and implementation of an IG program. The hope of course is that this will change over time, but for now it remains an unfortunate reality. So, for these reasons, it makes sense from a process perspective to start e-discovery projects with Identification and Preservation.

Similarly, with respect to the Presentation phase of the EDRM. Very few cases actually make it to trial, and anyone who has worked on a trial knows that they are a special kind of project unto themselves, very different from the more standardized processes like Collection and Processing. That said, presentation projects like trials, depositions, and hearings, are all sub-projects as well and project management may be used there as well.

The eDPM should be the model for working on e-discovery projects. This seemed to be warmly received by the audience at the ACEDS conference, which is the first venue at which the eDPM was demonstrated. It combines the time-honored workflow of the EDRM with the even more mature principles of PM to create a process framework that will lead to successful outcomes. My personal mission in the coming months will be to encourage and facilitate discussion on this topic and the use of the eDPM in the future.

Of course, you can weigh in too, right here, by clicking on the Comments section and offering your thoughts and suggestions.