I started my career in outsourced litigation support nearly 20 years ago when copying and scanning paper was the bread and butter of our work and e-discovery was still fledgling technology. While the vast majority of my experience came on the vendor side, I made the move to a law firm about four years ago. I began my litigation support vendor career in Account Management (i.e., Sales) and as a result made numerous contacts and friends on the law firm side. We would often try to entice law firm personnel to “switch to the dark side” when we spotted talent or needed production/operations people; in turn, many of my vendor colleagues would move in-house to a firm for a variety of reasons, including better opportunity or more stability. Sometimes these transitions worked and other times people would move back to their previous roles after realizing that certain skill sets may fit better at a law firm or in the vendor environment. Now, having spent a reasonable amount of time in-house, I feel I have developed a sense of the similarities and differences in each environment.
Allow me to note at the outset that while the e-discovery world once consisted of law firms (with their clients) on one side, and specialized technology vendors on the other side, that world is changing and evolving rapidly. We must recognize the emergence of large law firms with significant, specialized and dedicated e-discovery teams. These law firm units function much like vendors, serving both internal and external clients (including smaller firms). I currently work on a large specialized, full-service e-discovery team within a law firm with a full suite of e-discovery technology in-house, multiple data centers throughout the world, a dedicated document review center and every bell and whistle a litigation support professional could want. So, at least in the case of Kilpatrick Townsend, many of the following references to “vendors” could just as easily apply to a such a dedicated law firm-based e-discovery unit.
The tasks and skills addressed in this article relate to the day-to-day activities that we e-discovery professionals undertake. As we move along the EDRM lifecycle (see below), there are certain tasks that are more often performed by vendors and those that are more specific to law firms. The rules about when to use vendors and when to rely on law firms are not hard and fast, especially in the evolving legal industry, as you can find a vendor that will do just about anything and you can find law firms like mine that have both the financial and intellectual resources to perform tasks more often associated with e-discovery vendors. I will discuss each stage of the EDRM in turn.
There are a multitude of companies that focus on records management, providing guidance on information governance policies and procedures, data mapping and the day-to-day work required. These companies can be vendors and law firms alike. Regardless of whether a vendor or law firm is consulted on records management, this is a stage that should be important enough to designate someone (or a team, depending on company size and makeup) within the company to oversee. Without company buy-in and dedicated internal support with institutional knowledge, records management is simply too unwieldy to pawn off completely on an outside resource. That being said, any internal records management team should work closely with outside legal experts to ensure policies and procedures are defensible.
When it comes to identifying potentially relevant data, whether for preservation, disposition or for use in litigation, it is critical that organizations employ defensible strategies. In my experience, such strategies are best handled by attorneys with specialized knowledge of data management and e-discovery in collaboration with internal company representatives and, in the case of pending litigation, government investigations or internal reviews, outside counsel.
ESI preservation is something that requires law firm involvement and communication. Plenty of vendors offer legal hold services and software, and many law firms utilize those resources, but the long term requirements of preservation really require that law firm personnel be more involved in this phase of discovery.
I have found that internal company employees and inexperienced law firm personnel who are tasked with collecting client data usually do not specialize in e-discovery and are wholly unaware of the potential risks involved. Too many times, a lack of tracking, documentation and formal standard operating procedures results in costly and time-consuming discovery disputes down the line. Specialized support from a specialized e-discovery team or e-discovery vendor is critical. This is particularly true in the area of forensic collections. While my firm has certified EnCEs (certified experts in the industry-leading forensic tool, EnCase) and Certified Computer Examiners (I fall into this group) in-house, most law firms do not. Computer forensic experts generally have more resources and institutional knowledge than non-experts when it comes to forensic-type collection, including collection of mobile data and forensic analysis (in the case of, for example, purported spoliation). The added layer of defensibility for a forensic collection when performed by an outside partyis an additional reason to lean on specialized outside help. So, when it comes to collection, the plan should be to consult with the experts, whether they come from a law firm like Kilpatrick or a vendor.
Most law firms with a heavy litigation and e-discovery focus have some level of data processing capabilities. However, there are enormous disparities in such capabilities between a five person law firm or even a large regional firm and one like mine that has 20 offices worldwide, multiple processing tools in-house, a team of experts on staff and every possible security measure in place. Small law firms will almost always have to rely on outside support for e-discovery work. Most small law firms turn to vendors but large law firms with specialized teams should also be considered. For processing, as long as you use a group that specializes in it – whether that is a vendor or a law firm with a specialized team - the bandwidth you need to meet your needs should be available.
The review phase fits well on the law firm side. Sure, many vendors offer attorney review services, but let’s face it - having control over, and easy consultation with, reviewers about their quality of work is something that most litigation teams don’t want to give up. I’ve also found that searching, batching, and setting up reviews is more of a strength of law firm teams since they are more integrated with the case team and come with institutional knowledge that can provide invaluable guidance in conducting efficient and defensible reviews.
I have found that document production mirrors processing in the sense that if a law firm has the data processing capabilities, as in the case of large firms with specialized e-discovery teams, they also tend to have the requisite production capabilities. These functions are generally built into the same software platforms. As a result, small firms may well need to lean on vendor support, while most larger firms can handle their own document productions.
Unless a firm is large or specifically focuses on trial litigation with a dedicated team (like at Kilpatrick), it is unlikely they can invest in the software and personnel resources needed to have a well-equipped, full-time trial presentation team. Vendors, by contrast, can develop the specialization and acquire the hardware and software necessary to create quality demonstrative exhibits and refined digital trial presentations because their services will be used by many firms in many types of litigation.
Law firms and vendors vary in size and e-discovery capabilities. For anyone looking to move from one environment to the other, it is important to look at the areas or skills in which the firm or vendor specializes, as well as the areas in which they want to expand their expertise. For example, someone with strong processing skills might be a great fit for a growing firm looking to bring more e-discovery work in-house. There is plenty of cross-over in the skills and functions of law firm and vendor personnel but there are distinct and defined areas of expertise that may better lend themselves towards one or the other.