To In-source E-Discovery or Not – A Series of Corporate Questions

Since e-discovery is clearly here to stay, should its processes be handled internally or outsourced, or a combination of the two?

Many of Wortzman Nickle’s corporate clients are facing this dilemma. Finding the right answer is not simple, requiring a combination of legal and technological experience, plus top-down/bottom-up corporate initiatives.

The bottom line? Get everyone speaking the same language (not an easy task) and ask lots of questions, including the following:

1.         What is the volume of litigation in the corporation – can the expense of additional technology and perhaps staff be justified?

2.         What e-discovery expertise do existing in-house counsel and staff have?

3.         Who is available to project manage the e-discovery processes as well as any technology purchased for in-house use?

4.         Are there people in-house with an ability to stay current with legal developments and new and emerging technologies?

5.         How is employee productivity going to be impacted?  Legal and IT professionals, despite having e-discovery expertise, may be too busy to take on the entire process on top of regular responsibilities.

6.         What e-discovery expertise does external counsel possess?

7.         What technology will best work with the existing IT infrastructure?

8.         Does the corporation need an “end to end” solution to manage preservation,  identification, collection, processing/culling, review and production of records, or will some aspects of the process (ie. processing and/or lawyer review) be outsourced depending on the file?

9.         Will the solution you are contemplating allow for valuable software add-ons when required, such as concept-clustering or near de-duplication software, which may significantly simplify and reduce the costs of the lawyer review stage?

These questions all require careful consideration.

Selecting the right technology solution is central to the decision-making process. Many of our clients are reporting that they are overwhelmed with options, receiving numerous calls per week from forensic and e-discovery vendors wanting to pitch their in-house e-discovery solutions. 

How to best navigate these calls?  Wortzman Nickle can assist you. We are speaking with many of these companies to better understand the strengths and limitations of the various products and where they fit into the EDRM (Electronic Discovery Reference Model).  One cautionary consideration: an “end to end solution” may not be what it appears, so ensure your terminology is clear and evaluate your options carefully.

In the end, there are many solutions available. For some corporations, some aspects of the e-discovery process can be effectively managed in-house, while other processes may be better outsourced, depending on the litigation. Mostly commonly, it is a hybrid of the two that works best for most companies – providing both the stability and cost-effectiveness of in-house capabilities with the flexibility to apply new technologies as required.  One size does not fit all.          

Wortzman on early case assessment..

I have just finished a cross-country conference tour.  I started on September 16^th at the Sedona Conference, Getting Ahead of the e-Discovery Curve: Strategies to Reduce Costs & Meet Judicial Expectations in Vancouver.  Moving east, I then participated in the Canadian Institute: Class Actions Litigation conference on September 23^rd in Toronto discussing e-discovery issues.  The last part of my travels took me yet further east to Halifax on September 30^th to an Insight conference, E-Discovery and E-Documents.  I can now safely say that I have heard from external counsel, in-house counsel, vendors, records management and IT participants on their latest issues and concerns surrounding e-discovery in Canada. 

The buzz at all three conferences seems to be “early case assessment”.  While the never ending issues of preservation and proportionality were discussed, there was a tremendous focus now on costs and how to reduce the costs of e-discovery.  Peg Duncan and I prepared a paper for the Sedona Conference called e-Discovery: Bringing Down the Costs which garnered much interest at the conference.  I have since had several calls and questions from lawyers and in-house counsel wanting to discuss early case assessment tools.

In practice, I have recently been involved with two cases where we have very successfully used early case assessment tools to quickly identify key electronic records in massive collections of data.  Although this is not the end of the e-discovery review, it has allowed counsel to inexpensively and very efficiently identify key documents for their cases.  It is the inexpensive part that our clients are most interested in achieving.

Wortzman and Nickle continue to look at early case assessment tools to provide our clients with advice on the best way to assess and analyze their electronic records and their case, early in the lifespan of a matter.