Savings 'in the millions, easily' ...

Posted on April 21, 2009 by Lawdable

I would say that’s been one of the things I’ve been able to do in my three years here at Fidelity that has undoubtedly saved the company the most money of everything I’ve done, and I would put that in the millions, easily."

- Martha A. Mazzone, V.P. and Associate General Counsel, Fidelity Investments, on creating a "three-legged stool" with Counsel On Call and outside counsel
 

As demonstrated on what's become a popular podcast for LegalTalk Network, Marty Mazzone is incredibly well-versed in the discovery process and data management. Her candid comments and detailed descriptions of how Fidelity handles the litigation process have been helpful to many in-house attorneys. 

We've had numerous requests for a transcript of Marty's podcast, and have pasted at least a partial version below... to listen to all of Marty's interview, including an in-depth discussion on data management, please visit LegalTalk's website or our Media Center.


Paul Boynton, LegalTalk Network: In addition to bringing some of this work in-house, are there other service providers other than law firms that have been assistance to you?

Marty Mazzone: Yes, that is key, actually. And this is not to be disparaging of law firms, not at all. But I do think that all of us – clients and law firms, and I was in the law firm for many years -- have to address this changing model.

First of all, there is the whole technology vendor world in e-discovery, and they can be extremely helpful and critical partners in a major e-discovery effort. There are also these groups that I would call something like “discovery attorneys,” or maybe at one time you would have called them “staffing groups,” but they provide high quality attorneys for an extremely minimal cost compared to the cost of law firms. And by using those groups to do your review and manage that in-house, you’re saving your law firm attorneys for building the legal defense.

So to me … I’m building my factual defense up over here with my in-house contract or discovery attorneys, and then I’m transferring the knowledge they’re gaining to our legal defense team out of the law firm who are writing our briefs … and that transfer of knowledge becomes a very important element in what I’m trying to do. But I definitely think that we can almost see a third leg to the stool now instead of a direct link just from client to law firm.

You’ve also now got an opportunity to get a good set of discovery counsel who will continue to work with my company case after case, who will know what I do, will know acronyms, will know leaders and so forth, and they’ll be able to dig out the facts.

LegalTalk Network: Are there any particular discovery counsels that you categorized in that you’ve worked with that you would recommend to our listeners?

MM: Well, one of the best things I ever did was sign up for listserv [for in-house counsel], and I highly recommend reading those things, even if you don’t have time, because you never know what you’ll learn.

I saw a request for a discovery attorney … the whole concept for discovery attorneys was kind of new to me, and somebody from an extremely large company that I knew well had recommended a group called Counsel On Call. Counsel On Call is a Nashville-based company, they have offices all over the country, but are based in Nashville and what they do is seek out very experienced attorneys who are really looking for a different way of life than the normal law firm or in-house life … so they’re attorneys who would be in law firms or in-house but for their desire for a different world, or a different schedule, they are highly, highly vetted. So this person on this listserv who I respected said, “I used them and I never looked back and I have had enormous success with this group.”

 

So in the end it’s a big win for everybody, and I just recommend people really look hard at this sort of three-legged model.

 

[Counsel On Call] understands the review process, they have a vision for the whole discovery process that mirrors mine, they understand the need to work with the law firm to provide the knowledge that the attorneys are gaining through their document review to the law firm – but to provide it in an efficient way. And so, I’ve found that, over time, the great thing is that you start to work with the same lawyers who then become available just to you, and Counsel On Call has set up almost a Fidelity team for us … and I know these lawyers and I can say, “I want Suzie on this case” or “I want Steve on that case,” as they have different qualifications, different credentials. You end up with almost a little mini-law firm that you can call on to work with your law firm on any major case -- but at a quarter of the price. And I would say their experience with the various review tools, their experience with doing this kind of fact-finding and investigation makes them, actually, probably better at doing this than the first-year at a law firm might be.

LegalTalk Network: Marty, we have time for one more question. Now that you’ve been with Fidelity for a few years and implemented several new discovery initiatives, what advice would you give to someone who would find themselves where you were a few years ago? What are your primary lessons learned?

MM: One thing I would say is if you are talking about the technology side, make sure you have the right technology people working with you. It’s hard to find the right litigation support technology people. We have an awesome team here and that has been a lifesaver for me because [they provide] the ability to manage that kind of triangle -- lawyers over here digging up the facts and lawyers over there developing your legal defense. A lot of that is dependent upon good technology and peoples’ ability to use it. [So it’s important to] first of all, make sure that you’ve got a technology backbone and technology support people who are really your partners and are trying to build discovery capability in-house.

I would say that although there are always going to be times where you will have to turn everything over to a law firm, I think that the old law firm model may be a little bit outdated. And I think that the way the firms have been experiencing some pressure on their rates and so forth is [reason to] develop this kind of triangle of working with a Counsel On Call and a law firm to get work done in a most efficient way. I would say that’s been one of the things I’ve been able to do in my three years here at Fidelity that has undoubtedly saved the company the most money of everything I’ve done, and I would put that in the millions easily. And it has the most impact because everybody loves it – everyone loves the system. And I include in that the law firms who would really like to have the revenue but in the end they want to focus on what they want to focus on and not have to review documents.

So in the end it’s a big win for everybody, and I just recommend people really look hard at this sort of three-legged model.


The full podcast can be heard on LegalTalk Network’s website.

 
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Alternative Fee Arrangements Gain Traction

Posted on February 3, 2009 by Candice Reed

Recently, the National Law Journal (NLJ) reported that Burger King Holdings Inc., is just one company asking its outside legal counsel to consider "alternative and creative billing" methods in responding to the company's request for proposals -- further evidence that the billable hour is losing popularity among corporate clients who are under mounting pressures to cut outside legal fees. (Another NLJ article this morning also discussed the need for alternative billing models.)

Burger King has negotiated a variety of alternative fee arrangements with its outside counsel, according to the NLJ, including fee caps, blended rates and monthly retainers. Other companies, as well as the American Bar Association and the Association of Corporate Counsel, also are calling for the demise of the billable hour, saying it “breeds inefficiency and is driving up legal costs." A number of law firms are heeding the call to abort and are offering flat fees, success fees and contingency fees. One such firm offering its clients a "smorgasbord of fee options," as mentioned in the article, is Valorem Law Group. Interestingly, Valorem cites the use of Counsel On Call attorneys as one of the reasons that it is able to provide its clients with so many alternative and cost-efficient options.

We applaud Valorem's progressive and straightforward approach with its clients. We have a similar mindset – if our clients see value in working with us, we want to provide solutions that work for them -- whether those solutions include great attorneys, remote work, tested and repeatable processes or alternative billing arrangements.

Another note: For those of you in Tennessee and the surrounding area, I would like to invite you to an upcoming CLE sponsored by the Tennessee Bar Association this Friday, February 6, at 9:00 a.m. (CDT). As part of this CLE, a panel of in-house corporate counsel, including Michael Zylstra with Cracker Barrel, Sue Dyer with HCA, and Debra Enderle with Willis North America, will discuss what creative ways and alternative fee options they have utilized in an effort to reduce their legal budgets. Register here.
 

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Q&A: Sue Dyer, Senior Litigation Counsel, HCA - "A Repeatable Process"

Posted on November 4, 2008 by Candice Reed

Sue Dyer has spent the last seven years in Hospital Corporation of America (HCA)’s 50-attorney legal department and, as Senior Litigation Counsel, has been on the front lines of HCA’s development of a national e-discovery approach and protocol, a ‘repeatable’ process from which the company is already seeing benefits.

The largest for-profit hospital operator in the U.S., HCA had $26 billion in revenue in 2007 and was #87 on the 2007 Fortune 500 list. Ms. Dyer was nice enough to speak with Lawdable about HCA’s litigation (and specifically e-discovery) initiatives:

Lawdable: Discuss how the management of the e-discovery process has changed in the last 2-3 years, and/or how HCA’s approach has evolved.

SD: We are light years ahead of where we were just two years ago. Even though we’ve been focused on e-discovery for several years, in the last two years we’ve spent a lot of time educating ourselves about our IT systems and the multitude of e-discovery products on the market. Our goals have included the development of accurate and cost-effective processes that are repeatable. We’ve identified partners that share our belief in collaboration and that can help us accomplish these goals and, as a result, we have been able to implement many initiatives in the last year. Our approach also evolves with the evolving law in this area and the development of available technology.

What we’ve seen is that, with a repeatable process, we are able to collect data from one e-discovery project that guides us on each subsequent project. The data collection also helps us to better predict the expense of subsequent and/or similar cases.

L: Talk about your e-discovery communication process (and what you establish) with outside counsel and other legal service providers. How do you manage the process?

SD: We are actively involved at the beginning of each project in order to get the team acquainted with each other, to identify the location of the effected data and to participate in the project planning. Due to our large geographic footprint, we work with a lot of

different outside counsel. Outside counsel is a variable on each project. We try and use Counsel On Call on each project for consistency and knowledge retention in the application of our protocols as well as for data collection across projects.

Once the project launches, Counsel On Call provides regular, sometimes daily, detailed progress reports that include each attorney’s review rate for that period of time, the amount of data reviewed, amount of data remaining to review, marked and unmarked files by reviewer, reviewer hours, and other data. We also request notebooks summarizing the details of each e-discovery project (the data, costs per gigabyte or document, productivity, etc.) and a year-end overview that helps us evaluate our processes and aids our decision-making on subsequent projects.

L: Has the current economic climate forced any changes in your department/legal department? Do you anticipate changes (or further changes) in the near future?

SD: For the past several years, we have been fostering relationships with talented outside counsel who partner with us in our effort to control legal fees and expenses. We do this through creative pricing and the ability to work effectively and efficiently with a lean legal team. The current economic climate just increases the importance of this type of relationship.

During this same time period, our approach to e-discovery has been more fully developed, with accuracy, collaboration and cost-effectiveness as key factors. This is a significant area of expense and, in order to control some of the cost, we’ve developed the approach in which Counsel On Call plays a significant role. Using Counsel On Call as much as we can enables us to obtain quality legal services at unbeatable prices.

As for the future … Regardless of the economic climate, we’ll continue to employ both of these cost-saving strategies, as well as others.

L: What websites (and/or blogs) do you like to visit?

SD: I catch the news on either the Fox News or Tennessean websites. For professional websites, though, there’s just so much information out there. You have to pick and choose what to spend your time reading. I don’t do a lot of Internet surfing. Once I identify a reliable, accurate resource, I bookmark it.

How the information is packaged is important – it needs to be easily accessible and simple to scan. I like the updates I get from Kroll, as one example, and I regularly read the Corporate E-discovery Forum blog.

L: Let’s say you’re about to take a sabbatical, and someone is going to step into your role for the next six months … What advice would you give that person?

SD: I would love a six-month sabbatical! Probably the best advice I could give is to not be afraid to ask questions. HCA is a large organization and it’s challenging to get your bearings at first. Our in-house team is very good about helping each other out, especially the newer attorneys.

I’d also recommend developing a “triage” system. Way more work comes in than you can possibly get through in a given day, and you have to have a method to prioritize. Otherwise you’ll never get anything accomplished.
 
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