Managed Services: A Winning Approach to eDiscovery

By Paige Hunt Wojcik on September 29, 2017

The Future is Managed Services
The legal field is poised for significant change, according to Richard Susskind, author of Tomorrow’s Lawyers. Susskind states that the future involves commoditization of legal services and legal process outsourcing, along with other advancements driven by technology and process development. In a recent presentation, Susskind quoted Wayne Gretzky. The famous ice hockey player often counseled, “Skate where the puck’s going, not where it’s been.” When it comes to eDiscovery services, the “puck” is headed with great speed towards managed services delivery models.

The Alternatives Don’t Work
The “Wild West” era when each legal team developed its own discovery plan absent client input is coming to an end. This approach is fraught with inefficiencies, risks and ever-increasing costs – everything the legal field should be guarding against. Preferred provider models implemented by corporations and law firms have had a positive impact on efficiencies, risk and cost control, but there is still much room for improvement. A stronger plan than a preferred provider model is required to adequately prepare an organization to effectively deal with modern eDiscovery. The other alternative is building an internal eDiscovery unit within your organization. Most organizations underestimate the true cost of this model, forgetting that an effective solution requires state-of-the-art people, processes and technology. Keeping pace with the industry requires significant expertise and ongoing investments. Many have become disenchanted with the build model, realizing that they can achieve a higher ROI by outsourcing portions of their eDiscovery needs.

Managed Services in eDiscovery Defined
Managed services is a term that can have a wide range of meanings. Managed services typically involves a single third-party providing a set of eDiscovery functions to a corporation or law firm over a multi-year period using standardized and repeatable (often custom) processes.

Why is Managed Services the Holy Grail?
It’s actually pretty simple. There are two reasons why the future
is managed services. First, clients ultimately care about quality – specifically the accuracy of their work product, and timely delivery. The best quality comes from top quality teams working with world-class, standardized processes, honed over time. There is simply no way to get the best quality results using multiple partners and processes. Second, managed services is the right model from a security standpoint. Security has never been more important to law firms and corporations alike. Read the Wall Street Journal on any given day and you’ll uncover a breach. Why would any organization want data in any more locations than strictly necessary? Every additional location increases risk dramatically.

Managed Services Flavors
There are many different managed services models. Variables include staffing responsibilities, software licensing, technology infrastructure storage, management and maintenance of technology tools, process development ownership and ongoing innovation efforts. The three most common models are:

Infrastructure Model
The ownership cost of today’s leading eDiscovery tools is high. Some organizations simply want access to these tools in a secure, cloud-based environment. Outsourcing management, maintenance and security of technology tools can be very attractive. In some instances, a client licenses the technology directly and the service provider keeps the tools behind its firewall. In other instances, a client leverages partitioned, secure areas of systems that
the service providers already own – thus reducing the upfront investment for the client. In this mode process development, staffing and innovation efforts are the responsibility of the client.

Collaboration Model
In addition to access to the latest technology tools, some organizations want to collaborate with experts on process development, staffing and innovation efforts. We know that no one technology is the “silver bullet” that eases all of a client’s eDiscovery pain. Developing standard workflows, providing overflow staff support and specialized experts and vetting new eDiscovery technologies require specialized resources and significant bandwidth. This model provides a structure for clients to leverage a service provider’s team and expertise to supplement their team. Technology can be owned by the client or service provider and typically the service provider is responsible for the management and maintenance of the system. Under the collaboration model, an organization can leverage an outside service provider to enhance its internal eDiscovery team, processes and technologies.

Fully Outsourced Model
Appreciating the complexity of modern eDiscovery, many organizations choose to outsource eDiscovery to the experts. In the fully outsourced model, an organization contracts with an eDiscovery service provider for all of this work. Most, if not all, of the client’s eDiscovery work is performed by the managed services provider. Technology can be owned by the client or by the service provider. If the client provides the software, the systems typically sit behind the service provider’s firewall and the service provider manages and maintains the systems. The service provider develops standard workflows, provides the required staff and drives innovation efforts. The most appropriate eDiscovery managed services model depends on each organization’s unique needs, goals, litigation portfolio and organizational commitment. When contemplating an eDiscovery service solution, make sure that you are positioned where the puck is headed – not where it’s been.

Corporate law departments are at a watershed. A decade ago, hiring outside counsel meant outsourcing many of the ancillary services associated with litigation, such as photocopying and court reporting, among others. Those expenses were tolerable until the arrival of eDiscovery, which irrevocably transformed the cost structure of a lawsuit. Initially, law firms managed electronic discovery for their clients in the same manner as traditional pre-trial activities. They controlled the timeline, data and vendor alliances. Many struggled, however, to predict and address the associated costs.

After they were amended in 2006, the Federal Rules of Civil Procedure made eDiscovery a necessary element of the conversation between parties, counsel and clients. There is now established case law with which all participants should be familiar. Yet still today many participants contemplate a resolution prior to investing in any particular matter due to the ever-increasing cost of discovery.

Value Challenge Inspires Change
These cost pressures mean corporate legal teams are more committed than ever to maximizing the value of the services they receive from their outside counsel. In-house teams also typically have limited desire to build functions internally for ancillary tasks. Inspired by the Association of Corporate Counsel’s Value Challenge, in-house leaders are adapting quickly to this new environment, for example by applying alternative fee arrangements or implementing advanced project management techniques.

Discovery complexities, including new information types, global privacy restrictions, security limitations and growing data volumes, as well as dynamic advancements in review technology, are all evolving more rapidly than most law firms can manage. For that reason, corporations that leverage outside expertise at an organizational level can gain a competitive advantage.

The Science of eDiscovery
Niche advisors have become an essential element in any material litigation. In fact, eDiscovery is such a prominent specialty that almost every AmLaw 200 firm now has a lawyer with extensive knowledge of legal technology. They lead groups of practitioners and support staff members tasked with offering valued-added services to clients with complex discovery challenges.

Allied to law firm experts, third party expert consultants can add significant horsepower given the depth of technical skill they possess. After all, eDiscovery consulting is the core function for top tier service providers, whose partnerships with corporations result in a powerful institutional familiarity that yields tremendous business value.

Balancing Perspectives for Better Decisions
The value of eDiscovery consultants and expert service providers is distinct from that of outside legal counsel, who are hired to mitigate risk within a particular legal matter, and in-house litigators, who evaluate organizational risk on behalf of the business. Since perspectives on basic discovery principles like reasonableness vary, it is essential to formulate client-approved standards.

As this formulation may be the result of some debate, engaging an external expert can balance divergent opinions. An outside service provider solely focused on technology, discovery and litigation support can frequently bring equilibrium to a conversation about strategy, costs and potential outcomes. Regardless of the size of the matter, this approach can offer a consistent level of feedback with a full understanding of a company’s data map, internal resource constraints and technical limitations.

The True Cost Calculation for the Organization
Electronic discovery is typically the largest expense funded by a litigation budget, particularly when factoring in the cost of document review. Yet outside lawyers frequently evaluate culling strategies without an adequate understanding of the company’s data types and management practices. They must also spend time assessing service providers, even though they might not be ideally suited to gauge such criteria as historical accuracy ratings, security credentials, suitability of tools and experience.

In addition, pricing negotiations are generally focused on the procurement of services for an individual matter, rather than organizational buying power. This approach is fraught with risk and inefficiency. Instead, corporations should select service providers directly to: (1) control spending; (2) minimize their risk; and (3) alleviate business disruption. They should also limit selection to those with critical security credentials like an ISO 27001 certification.

Of course, buyers beware: the lowest cost service provider is generally not the solution since accuracy, security and experience could be sacrificed.

The Winning Approach
To harmonize all of the competing factors, corporate legal teams should seek the expertise and guidance of service providers capable of partnering with their in-house attorneys and outside counsel to guide the organization in the development of standard, repeatable discovery processes. They can help maximize potential efficiencies by establishing protocols based on actual data, rather than assumptions from industry standards.

There is proof abound that a higher-level outlook on identifying key proficiencies makes a difference. Law firms evaluate data sets from a myriad of clients and struggle to effectively leverage that experience in a single matter for a corporation. On the other hand, a managed services provider becomes intimately familiar with a corporation’s data. They take a consistent approach that maximizes efficiency over the course of the relationship.

In addition to risk management and cost control, this approach will significantly reduce outside counsel fees related to eDiscovery. A consultative service provider will partner with outside counsel to efficiently separate the junk from the gems in discovery thereby limiting the volume of data outside counsel need to analyze.

An established process and outside experts can also effectively guide law firm partners through a standard corporate procedure that minimizes business disruption for the organization, ensures consistency among all matters and allows counsel to focus on the merits of the case, which is generally the job they were hired to do.

The Solution to Your eDiscovery Staffing Challenges

By Paige Hunt Wojcik on September 25, 2017

Legal organizations continue to search for talented, niche professionals to deliver unique skills and value in non-standard roles. The tremendous growth of eDiscovery over the past decade presented a need for recruitment of staff members with specialized skills. These staffing demands are increasing while the need for traditional paralegals, secretaries and even associate-level attorneys is waning.

The Challenge
While law firms and corporate legal departments routinely embrace the need for eDiscovery specialists, the demand is far greater than the supply of talent in the current market. The Cowen Group’s Ninth Annual Salary Survey Report (2014) on hiring trends in litigation support and eDiscovery predicted the need for 165 new eDiscovery positions in the United States in 2015. Why the increase? Over 90% of the respondents cited higher workloads.

And, this talent is expensive. According to the survey, the median salary of an eDiscovery Project Manager was $120,700 in 2014, up 13.4% versus 2013, and expected to rise by over 6% in 2015.

This competitive marketplace presents an environment in which opportunities abound for talent, and increased earning potential is never far out of reach. Organizations and recruiters are in a constant battle for high caliber personnel, with legal teams feeling the impact.

The Burnout Factor
eDiscovery support is not the sexiest job. In fact, it can be one of the most thankless posts in the legal industry. Persuading attorneys to adopt new strategies, leverage better technologies and change their habits to “save them from themselves” is not an easy task! Frequently, attorneys do not even want to engage in a discussion about eDiscovery, so strategy is left unexplored, which is frustrating to many.

In an industry where “no” is never an acceptable answer, eDiscovery professionals are required to make the impossible possible on a regular basis and typically with limited support or resources regardless of the late nights and lost weekends required. There is an expectation of 24/7/365 support on demand. Consequently, burnout is one of the most common reasons why professionals change jobs or leave the industry.

Most organizations do not have the resources to provide around-the-clock support, even for limited periods of time. Failures or errors in work product like inadvertent production of privileged material, a missed deadline or a quality control issue can have a serious impact on the underlying case. Without greater backing, eDiscovery professionals are destined to fail, which negatively impacts the attorneys’ experience and the clients they serve.

Niche Expertise Requirements
Moreover, eDiscovery is becoming increasingly more complex and voluminous. Even the “best and brightest” in the field cannot individually provide end-to-end services in a cost-effective manner. Law firms and corporations need reliable access to specialists in forensics and collections, strategic consulting, data processing, data culling, technology-assisted review (TAR), document review, project management and document production. A single case, depending on the relevant issues, can require a consultation with multiple experts.

Most legal teams, however, do not have the volume of work necessary to employ a full-time authority or a strategic consultant with sufficient expertise in each of these specialties. When, for example, computer forensics becomes a critical need in a case, attorneys have to scramble to find a solution. As a result, a proactive support plan to identify and access these specialists should be developed before the need arises.

Risk Management
In an environment where litigants increasingly challenge an adversary’s discovery protocols, many prefer to outsource some of the risk. Tasks that are prime candidates for outsourcing include data collection, forensics and processing. Most organizations do not want their internal staff submitting declarations or testifying in court because the danger of a negative outcome is often too great to justify the risk.

Given the dramatic increase in data breaches, data hosting with service providers that hold security credentials like ISO 27001 is also on the rise as a risk management measure. While the number of AmLaw 300 firms that hold the ISO 27001 certification is increasing, very few have invested in the expensive and laborious process to achieve this sought after credential that corporations are beginning to require.

The Importance of Consistent Project Management
Organizations covet predictability and continuity. Both are required to effectively manage discovery. But, project managers are in high demand in every organization and throughout the industry.

Managers of eDiscovery organizations cite staffing continuity as a key challenge. Attorneys in turn will highlight the need for dependable project management in eDiscovery as their greatest need.

In the absence of a deep eDiscovery bench and a project management workflow management system, the departure of a seasoned project manager has a significant impact on business continuity and performance. Turnover leads to a loss of history and institutional knowledge and requires legal teams to familiarize new personnel on past progress and future plans. Inevitably, there are gaps in knowledge and missing details. Frustration levels rise and risks increase. Team members need options that elevate their experience and position them for increased, longer-term success.

A Proven Staffing Solution
A strategic partnership for eDiscovery support with a managed services provider can help organizations maximize success. A managed services provider is responsible for providing a set of eDiscovery functions to an organization through a team of experienced professionals who deploy standard, repeatable processes. Legal organizations will enjoy access to a deep bench of experts in multiple forms. Staffing arrangements can vary from a fully outsourced eDiscovery function, to individual secondments or consultants. Resources can be allocated on a case-by-case basis or shorter-term staff extension programs can help organizations work through the peaks and valleys of litigation.

Discovia offers a 24/7/365 support infrastructure, deep bench of experts, matter management tracking tools and significant experience providing managed services solutions that organizations desire. We are one of the only providers of eDiscovery services that is both ISO 27001 certified and HIPAA compliant.* Access to a seasoned team of eDiscovery specialists is one of the many compelling reasons to explore managed services alternatives with us. Welcome to the new era of eDiscovery in which you can capitalize on an expert group of professionals to meet your requirements on a cost-effective basis without any sacrifice in quality – and without having to build the team yourself.