Electronic Discovery Made Easy : Electronic Discovery & Document Management Commentary : David Rostov : Lighthouse Document Technologies : Litigation Support News & Updates

By David Rostov and Debora Motyka Jones

We often get questions from our clients about how best to select an electronic discovery vendor.  Important considerations in this process are what questions to ask, how best to compare vendors and what are the important issues that are typically missed in the selection process.  In particular, our clients often tell us that they sometimes struggle in the vendor selection phase to be able to best assess the quality and capabilities of a vendor.  Given the challenges of choosing the right vendor, we often hear that law firms default to making their decision based almost exclusively on price considerations. 

We put together a short list of key questions that can help in the eDiscovery vendor selection process. 

Top Questions To Ask When Choosing an E-Discovery Vendor

• Scope of Services

▪        What services does the vendor offer?

▪        If case parameters change, will the vendor be able to meet your needs and time frames?

▪        Are there volume benefits/discounts if you use multiple services (e.g. processing, hosting and production versus just hosting)?

▪        What services are sub-contracted out and does data ever leave the vendor’s site?

▪        What size or type of case is too big for the vendor?

▪        What have been vendor’s toughest cases?

•        Expertise (Not all vendors are created equal; and it is not all about price)

▪        What is the vendor’s knowledge level of the technical issues?

▪        Are the vendor’s employees certified in the tools they use?

▪        What is the vendor’s level of understanding of the legal process?

▪        Are there legal professionals on staff?

▪        How does the vendor’s expertise compare to other vendors?

•        Quality of Services

▪        Is this a vendor that you could see yourself establishing a longer term relationship?

▪        How does the vendor manage ensuring high quality service consistently: accurate and on-time?

▪        Are errors tracked? What are considered errors? How are errors addressed?

▪        What do the references say about the vendor?

•        Customer Service

▪        What hours does the vendor operate?

▪        How available are the vendor’s employees during non-business hours?

▪        How much lead time is needed for processing and production?

▪        How are cases staffed?

▪        Who is the primary point of contact? Is it the same throughout the case? 

▪        What is the nature of the vendor’s project management team and approach?

▪        How are issues escalated?

•        Technical Specifications

▪        Does the vendor use proprietary versus non-proprietary software and what are the benefits/trade-offs?

▪        If the data is not being processed locally, what is the vendor’s FTP connection speeds and how does this compare with the law firm’s FTP speeds?

▪        What is the vendor’s policy on backing up data?

▪        What is the vendor’s policy regarding storing data?

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In 2009 you will continue to see very large increases in the size of the discovery data sets. According to a study by McKinsey & Company, the demand for corporate data is growing by 50% per year. According to the ABA, 60 to 90% of the cost of litigation relates to first level review. This means that litigation costs in 2009 will continue to increase. Of course in a global economic recession, the “amount in controversy” will not increase by an average of 50% in 2009. As Magistrate Judge Paul W. Grimm writes in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008), “The goal is to attempt to quantify a workable “discovery budget” that is proportional to what is at issue in the case.”

If the size of the data involved in litigation is growing by 50% per year, the only way to effectively control litigation costs is to embrace the use of electronic discovery tools. The good news is that understanding and using the basic electronic discovery tools is relatively straightforward.

I have broken the basic tools into five main categories:

1. Data collection. How the data is collected will have a significant impact on the overall cost of the case.

a. Determine if you need a full forensic image (copy of the full drive; this will pick up deleted files as well as active files); or

b. Targeted File collection (also referred to as an Active File collection). Usually this collection method will avoid collecting system files.

2. Filter the data by custodian and/or date ranges. This means eliminate/suppress the data that is outside of the date range of the case. Also, eliminate/suppress the data for custodians that were inadvertently collected in the data collection but are not part of the case.

3. Cull out the system files. Suppress all system files. This usually accounts for a significant amount of the data collected. The only exception to this rule is if for some reason certain system files relate to the case.

4. De-duplicate the data. This will identify exact duplicates of documents and suppress them.

5. Search the data. Different search techniques are used for different type of cases. However, a key word search is still the most frequently used technique to identify relevant documents.

Here’s a recent example of the power of eDiscovery tools. We recently worked on a case in which we did a full forensic image of over 10 computers and laptops. The total data collected was over 1 terabyte. Using the first four eDiscovery tools listed above – collection, filtering, culling and de-duplication -- we reduced the data set to 150 gigabytes. Working with counsel on key word searching, we were able to reduce the 150 GB to 5 gigabytes. This represents a reduction of over 99% of the data size prior to attorney review. The attorneys reviewed the data and we produced one gigabyte of responsive data or under 50,000 documents.

In summary, embrace eDiscovery tools. Treat them as your NBF (“new best friend”). They will allow you to better control the rising cost of discovery as a result of the fact that corporate data is growing at a 50% annual rate.

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