E-Discovery is Trust and Commitment

There’s a very good post on Clearwell’s e-discovery 2.0 blog about the process of bringing e-discovery in-house, or more importantly some of the questions that need to be asked during that process.

One particular observation in the post stuck out to me: “…every company today, believe it or not, has an e-discovery solution in place.” This is very true. Many companies who must scramble or shift work around internally to address a pressing matter or who automatically send any and all litigation straight to outside counsel might not characterize their approach as a “solution” (more of a default mechanism, maybe), but it is a solution, nonetheless. From that point forward, the steps and questions laid out in the post are certainly good ways to look at the in-house e-discovery process.

The statement also juxtaposes another observation in the post about in-house departments going through the RFP process and seeking an “end-to-end” e-discovery solution. These two statements, in my view, are actually directly related. Many in-house departments are not equipped to handle any significant e-discovery work, so in the past they simply sent that work to their law firm(s) because they could physically handle the review of the documents (and were already handling case strategy). Now that the in-house departments are under incredible pressure to cut costs, they must come up with a different solution, but still don’t have the resources or time to handle it internally. They want a simple, straightforward solution that they can hand off and know it will be handled in a quality, cost-sensitive manner.

I believe this encapsulates one of the most challenging issues we face in the e-discovery realm today, one that our company has spent an inordinate amount of time addressing internally and that

ultimately helped us create the “end-to-end” solution that we offer. The issue is that there is no one-size fits all in the world of e-discovery. Every case is different. Sometimes a different review tool is needed; sometimes it makes perfect sense to use an early case assessment tool, sometimes it doesn’t; sometimes it’s better to bill by the hour instead of billing by the document, gigabyte or custodian. For us, the ability to offer flexibility was central in our end-to-end service – we’re not tied to one review tool or processing partner, we’re not tied to one type of pricing, we’re not forced to use anything because of previous business purchases, mergers or partnerships.

When simplicity and a straightforward approach are paramount, it boils down to two basic questions: 1) Is the in-house department truly ready to step away from the old way of doing things? and 2) Is the department ready to tell everyone involved, “This is how we’re doing things now?” Simply put, it is trust in the process and commitment to it.

If there’s anything that can be learned by those clients initiating the RFP process, it’s that there is an entire industry of e-discovery providers that eat, sleep and breathe these matters and share a focus on initiatives like protocol, effectiveness, cost reduction, knowledge retention, defensibility, litigation ROI, and dozens of other business-focused issues. In fact, many law firms rely on companies like ours to provide these services and focus to their clients. Only a little bit of due diligence on this front should ease any trust concerns an in-house department might have.

Then comes the issue of commitment, and we see this challenge every single day. In-house leaders are often in terrible predicaments when it comes to making changes in the e-discovery process, especially when they have become so accustomed to particular arrangements. But what we’ve seen time and again is that when in-house counsel sets the tone, works with its partners (including their law firms) to create a solution and a new e-discovery process is implemented, the results trump everything. At the end of the day, the ability to point to a better, more consistent process and to quantify cost savings and value are worth their weight in gold.

So while building an e-discovery process might seem like an arduous task, it really isn’t. It comes down to trust in your partners and commitment to your process, and the payoff on those fronts is significant.

 

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