Our last few blog posts have been dedicated to answering the top 5 questions to ask your law firm about how they handle your eDiscovery.  This week is a biggie, because technology and handling the data can represent hundreds of thousands of dollars.

Before we dive in to what you should ask your law firm, it helps to understand what you are asking about and why. How you address handling data and the tools you use for a matter will directly impact how much it costs, how much you can do with the data (i.e. linear review vs. analytics, etc.) and how fast you can do it.  If you need data reviewed next week, using Relativity that requires a lot of upfront loading and database construction isn’t practical, but one of the DIY solutions may get your team reviewing in a matter of hours.  Too often we skip that first step in the analysis.

Your goal in talking to your law firm about technology is to take that first step.  Learn what they use, why, and whether it’s the best decision for your work.

Yes, you heard me right.

I want you to start questioning what your firms are doing, not just adopting their approach carte blanche.  

If you want to do discovery better and less expensively, start learning.  

What do you mean by eDiscovery Technology?

Good question.  Basically, we are talking about any of the software or hardware that is needed to collect and handle the data so that the review team can review it.  It’s a multi-step process to pull together different types of data (email, word docs, social media, etc) into one database to look at them all.  If you are the producing party, you need to include production in your thought process as well (it sometimes costs extra).  I won’t get into the different stages/steps here and how data is handled in each, as that’s a post unto itself.

There are many, many different tools out there and many approaches that can be taken with data depending on the goals of the case.  Most often, eDiscovery technology refers to the review platform that allows reviewers to see the documents and tag or filter them.  You may be familiar with some of the most well known platforms like Relativity, iConnect, Ringtail, Viewpoint, etc.  Many of these review platforms have either compatible or built in analytics tools.  These analytics tools can save significant time and money by eliminating unnecessary linear review, but you need to know HOW to use them.

Over the last few years, we’ve started to see what I call DIY eDiscovery platforms that don’t require a third party provider — you can simply upload data directly from your desktop instead of having to send the data to a party that licenses one of the aforementioned review tools. Then you are off and running.  Some of those tools are Logikcull, Lexbe and Nextpoint.  Each one has it’s own unique features and capabilities.  Many in-house legal departments are starting to use some of these tools.

When talking to your law firm, you need to know what they are using, why, and whether that’s an appropriate decision for your case/subpoena/second request, etc.

What technology does the law firm use?

There are three ways to approach eDiscovery technology:

1) Bring tools into the firm to be managed and supported by litigation support and IT,

2) contract with a services provider to use services like collection and tools for review, etc. or

3) choose the tool once you know what the case, how much data you’ll have and what functionality you need in a tool.

Large law firms by and large go with 1 and 2, or some combination of those two options.  Many pay significant annual licensing fees ($80,000/year is the cost for a very popular platform) to bring a platform in house and that’s what they use.  How they charge it back to you varies by firm, so you need to ask.  Part of what we do is ask those questions to understand whether the client needs to have the firm do something different than their usual approach.  Firms that have one tool do it mostly because they like having one tool that their lawyers know.  It just isn’t always the best one for your matter, and the pricing structure is the same across cases.

These days, knowing one platform isn’t a cost savings.  Realistically, younger associates at firms do the review, so if they haven’t used the platform before, or just once or twice, it isn’t a savings to have them use a platform that otherwise doesn’t make financial sense for the case.  So find out who will the review team will be.  If you are using contract lawyers, you can hire lawyers who know a particular platform, or who have done reviews on similar types of cases.  You can be MUCH more specific about managing review than you ever have been, and that’s where the real cost savings lies. If the knowledge of a platform is a plus and you can point, then by all means capitalize on it.

Firms who go with #2 and contract with outside services tend to get stuck in the same rut as #1 — they tend to use the same platform over and over again.  The provider that they negotiate a contract with has one review platform and that’s what the firm uses.  There’s no incentive for them to be shopping for the latest and greatest technologies for you.  You need to know whether these outside services are being marked up, or whether you’re paying hourly for litigation support management, or how it’s structured at the firm.  You also need to know what the firm contract is with the provider so you can compare it to what you’ve paid in the past and see if it’s on par.  I’m continuously amazed at the different cost structures you can negotiate because there are many providers selling access to the same platform.

Our approach at ESI Attorneys is generally #3.  We evaluate multiple factors about a case and then decide on a tool, including:

• The value of the case including any potential negative PR that may be in play;
• The jurisdiction the case is in — Rocket dockets require special consideration out of the gate, as things need to move, well, you know, like a rocket.  Since nothing about eDiscovery moves fast, you need to plan for that. Does the jurisdiction have eDiscovery rules and has your judge issued eDiscovery decisions?  If so, what do they say?
• The type of proceeding — first in the line of cases to be consolidated into an MDL? (Think GM and the ignition switch debacle.)  Declaratory judgment action?  Subpoena response?  Third party subpoena where you’re concerned the client not be added as a party?  Bet the company theft of trade secrets that requires forensics?
• The budget for the case — if there is one — or are there considerations such as where the expenditure falls relative to the annual department budget for businesses and when expenses should be felt? Those can be controlled if you know them up front.
• How much data is likely to be involved (we can know this by date range of relevant data, types of data and number of custodians);
• What kinds of data are involved (email, documents, photos, video, database entries, etc.);
• How many people in how many locations need access to the data for review or use in cases?  Is it an MDL proceeding that requires a special front end login page?
• What are the goals for the case?  Is this one that you’ll take to trial, that you have to be prepared to go all the way, or are you looking to protect information and negotiate an early settlement?

All of these issues and more weigh into what tool to use for a given matter.  Because we spend a LOT of time looking at and evaluating and using new technologies, we have a pretty good idea of what we’d do once we answer these questions.  Of course, if the outside firm doesn’t charge back for their internal review platform, that’s a pretty big incentive to use it too.

Who is my Project Manager?

The tool/review platform is only one piece of the puzzle — talking to providers or internal lit support at the firm is very important as well.  If you have a high profile Second Request from the DOJ, you need 24/7 customer service for that 30 to 60 days.  Any delays will set you back.  You need to know what kind of project management experience the provider/firm has on board.  The project manager is your gateway to using a tool most effectively and communicating with you about what’s not going as planned.

At a minimum, you need to know:

• How long has this PM been working with this tool?
• How much legal experience does this PM have?  If none, you’ll need competent legal experience to pair with the PM to know how to use the tool and data most effectively.
• How am I paying the PM?  Is it built into the cost of the database (negotiate that in), or is it charged hourly?
• How much time does the provider/firm estimate you’ll need in PM expenses?

Lack of good project management can seriously derail a case and cause many, many issues, some of which can lead to sanctions.  You need to know who’s in charge of making sure things go smoothly in PM.

What should I expect to pay for handling data and the tool for my case?

This question is like asking how many goals a team will score in a World Cup match — you never know until the game is over.  Why?  Because the pricing structures are all over the map, and nickel and diming is a way of life for eDiscovery providers.  A couple of weeks ago, our friend Craig Ball wrote an excellent post on pricing in the eDiscovery market.  The reality is that although technology has driven costs down considerably, pricing is still very high — or, as Craig put it, unconscionable.

Pricing is also all over the map.  If firms bring systems in house, they all charge differently.  Some firms charge for loading data, some charge for processing, some for project management, some for  litigation support time, etc.  Some charge by the GB, some charge by the hour, others do a flat fee.  You won’t know the final costs until you know how much data you have, and complications will ALWAYS increase that cost.

The same is true of providers.  Below is a chart that we compiled following interviews and pricing of four separate providers for setting up a hosted database  for a case — meaning the provider would host the data. Based on the fixed assumptions, you can see that the costs vary by hundreds of thousands of dollars.  Vendors C and D are selling use of the same review tool, while Vendor A uses a different tool with the same or similar functionality as C and D. Vendor B utilizes a tool with significantly less functionality in the tool itself, has no analytics and requires a specific file type.

Rarely are provider comparisons apples to apples.  That means that you need to know what you need to know what you need or want from a platform and a relationship, and negotiate from there.

Download (PDF, Unknown)

The truth is that how much data you have to input is directly proportional to the cost.  As the amount of data goes up, so does the cost.  Other variables, though, are manageable by talking to providers or your firm and negotiating the charges based on your needs.

There are two ways to have a handle on your costs:  Gather metrics from your previous cases, and negotiate away variable costs.  Your metrics should give you a ballpark on how much data  you’ll have per custodian, and then you can estimate your costs based on how much data you’ll have and how long you’ll need to host that data with a provider.  Managing that data, once it’s up is also key.  (HINT:  once you review, take down the irrelevant stuff and save on monthly hosting charges.)

If your goal is to start controlling costs and do discovery better, start asking the questions about what your firms are using for your data.  The firms may knock your socks off with their approach, or you may cross them off of your preferred provider list.

Either way, don’t you want to know?  

If you missed them, check out the earlier posts in the series:

• Five Questions to Ask Your Law Firm about eDiscovery
• #1 Who’s in Charge of your eDiscovery?
• #2  Does the Firm have a process that they follow for eDiscovery?