Working with vendors, like any approach to discovery, has its pros and its cons. It is true, for instance, that partnering with a large discovery provider affords some degree of insurance — where liability can be shared, if not completely transferred, should something go awry. On the other hand, if the vendor itself is the primary source of risk, that logic crumbles completely.
There is also a degree of convenience that comes with using vendors. That is, assuming you’re willing to put up with the hassles and logistical obstacles that dog any enterprise susceptible to human fallacy and the strictures of a 5-day work week.
Choosing between vendors and software is not unlike picking between a travel agency and Priceline — and the point of this post is not to stump for one approach over the other. There is room for both, if, for most, the uses for the former are increasingly few and far between. Still, sometimes the complexity of a certain matter demands an entourage of highly compensated project managers and tailor-made solutions. To tweak the analogy some: a staff of financial advisers when TurboTax just won’t do.
But as it stands, these days, the vast majority of travel planning or tax returns or (name your increasingly technology- besieged activity of choice) requires no more than internet connection and competency — and the same is true of discovery.
If you’re still using or considering using a vendor for routine, day-to-day matters — for those “big blue ocean” cases, as it were — consider posing these five questions to help inform the implications of that decision.
1. Where is my data right now?
To paraphrase Neil McCauley in Heat: Don't let your data get attached to anything that prevents you from accessing it in 30 seconds flat if you feel the heat around the corner.
Some people treat discovery like one extended fire drill, which is a problem in and of itself. But the point is, you need to know where your data or client’s data is at all times, because in this game, you will inevitably need it, like right now.
If you need to access your data or your client’s data in 30 seconds, could you? And if not, what hoops would you have to jump through to get it? How much time would that take? What are the consequences to delay? And what are the opportunity costs?
The other key consideration here is one of security. An inability to understand exactly where your data is and how it’s being held and treated undermines chain of custody and other auditing efforts. It also means that, in all likelihood, that data is exposed in one way or the other.
Which leads to the logical follow-up…
2. Is my data encrypted?
Hypothetical scenario. You need to deposit a thousand dollars in cash. On one side of the road is a bank with an ATM. On the other is a FedEx. You can use that FedEx to mail the thousand dollars to a Slumberland, where there will be an attendant waiting to receive the envelope 48 hours later and, for a fee, bury it under a mattress.
Where are you putting your money and how are you going to get it there?
No brainer. And yet, a) the vast majority of data transfers occur over insecure channels and b) when that information gets to its intended destination (if it is to be so lucky), rarely are the appropriate steps taken to protect it. This is problematic for a number of reasons, not the least of which are that law firms are attracting unprecedented attention from cybercriminals or that most law firm breaches relate to compromises of physical media.
Ideally, ESI should be encrypted at all times — meaning, at rest, which no vendor does — and at the file level, where individual files or directories are encrypted by the file system itself. Your connection to the data should also be encrypted.
In all likelihood, you won’t get hacked or fall victim to cyber-espionage. And, in all likelihood, you won’t ship that hard drive to the wrong address — or accidentally CC a competitor on an email with sensitive attachments. But it wouldn’t be the first time. And you’d rather make the front page of the Wall Street Journal for other reasons.
3. What’s the catch? (No, really. What’s the catch?)
Or as one to-be customer once memorably asked us, “How are you going to f—— me?” Fair question. E-discovery vendors are notorious for larding invoices with esoteric line items.“Hibernated subcollection,” anyone?
This isn’t 2011. The days of say, charging a “variable license fee” of $42,000 a month just because are over. The economy still stinks. And now clients are increasingly wary of, and attuned to, left-field surcharges. Plus, they have more and better options available to them -- and are more inclined to call the shots.
Similarly, law firms are less willing to contract with a vendor if it means risking the prospect of passing on absurd fees to their clients — or, worse, eating those bills because those clients rightfully balk. Discerning buyers seek predictable fees that eliminate surprises and allow for meaningful budgeting. Securing flat rates is especially important given the many moving parts (data, users, time, etc.) discovery involves, and the wildly unpredictable amounts of information at issue.
4. What’s your stance on surge pricing?
Surge pricing relates to the concept that you pay more when you’re at the mercy of factors outside your control. You've experienced it if you've ever ventured out on New Year's eve or Ubered in San Francisco. Unfortunately, discovery is largely influenced by factors outside your control. Responsive docs show up randomly and in weird places. Deadlines move. Requests compound. Things just happen. You're exposed to the whims of circumstance. You shouldn't also be exposed to the whims of your vendor.
It’s important that your solution and its support team are available around-the-clock, and more to the point, that you're not paying a premium for "off-hours" service. It's taxing enough that you and your staff are working through the weekend. You should't also be subject to "rush" and "fast-track" pricing. Ask your vendor whether you'll have to pay up when you're in a pinch -- and if, when you upload data at 4:45 on a Friday afternoon (a certainty), it will cost the same as on Monday and be done in the same amount of time.
5. Who is working on my case, and how well do they know it?
In the era of legal ops, where lean efficiency and strategic excellence share equal billing, it’s not enough just to secure predictable pricing or to meet budget. The real goal is to improve the practice of law and, in the context of discovery, use the data at issue to deliver insights, build arguments and mold strategy. As the frequency of trials continues to fall, discovery is becoming the de facto dispute resolution mechanism in US litigation and, to that end, the battle ground where disputes are won and lost. Ceding control to lesser legal minds and/or to those less intimately familiar with the facts may mean forfeiting a strategic advantage. Democratizing technology now exists such that overseeing attorneys can get their hands dirty in discovery in ways that bring their unique knowledge to bear on the case at issue. Can your vendor fill this void? And if not, who is? What are their qualifications? And what do they know about this bet-the-company suit?