eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation.
Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a “small” matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.
Oftentimes, eDiscovery vendors will offer volume-discount pricing and other perks in order to earn a spot on an employer’s coveted preferred vendor list. For those employers who are involved with the vetting of their eDiscovery vendors, below are some considerations to keep in mind.
- Your vendor’s capabilities – starting the conversation
When it comes to capabilities, not all vendors are built the same. It is important, at the outset of your matter, to anticipate the needs of your case and select a vendor who can best meet them. Consider whether your vendor can provide the following:
- Collection and preservation of data;
- Forensics analysis;
- A review platform (and related support and technologies);
- A managed review of documents; and
- Expert testimony
Some cases (such as, for example, a large-scale trade secrets litigation) may require the full gamut of services. In those instances, it may be best to retain a vendor that can perform each of the above-listed functions effectively, so as to streamline processes. (In this regard, you can trust – but should verify – vendors’ representations about their capabilities. More on this, below.) In other cases, it may suffice to select a vendor who specializes in only some of these processes. In either instance, it is important to pick the right vendor early in the process; switching vendors mid-case can create myriad issues (including chain-of-custody problems) and complicate expert testimony.
Once you have started the conversation, how do you determine whether your vendor can perform the functions it says it can, and at the speed and with the efficiency and accuracy that you need? Having an informed conversation about each of the above-listed functions will be key.
- Forensics analysis – a vendor can be a roadblock or an E-ZPass
When it comes to forensics, partnering with a vendor that is responsive and can produce detailed, accurate reports within an expedited timeframe is essential. Moreover, the vendor should be able to produce the reports that you will need and in a format that is sufficiently user-friendly. (A report that provides in-depth analysis can be much more helpful than a series of Excel spreadsheets containing raw data, although – in most cases – you will want both.) Finally, if you anticipate that your matter might become litigation, you will want to ensure that the person performing the forensics analysis has testified successfully before and can meet the Daubert standard.
With these in mind, here are some questions that you may consider asking your vendor:
- How long does it take you to image a computer? An iPhone?
- What is your typical turnaround for providing forensics analysis?
- How much notice do you need to expedite a forensic review?
- How big is your forensic team?
- How many dedicated computers do you have within your forensics department?
- Do you provide 24-hour and weekend support? If so, is there an upcharge?
- Will there be a case manager assigned to my matter to ensure continuity?
- What kinds of forensics reports can you produce? (Standard reports include connectivity, cloud activity, file access, internet activity, and among others.)
- What do your reports look like? How user-friendly are they?
- Do you have people who can provide expert testimony?
Don’t be afraid to ask for (scrubbed) examples of forensics reports and expert CVs. You can even request to interview the person who will be testifying about the forensics analysis to get a sense of how he or she might perform during examination. By thoroughly vetting your forensics vendor, in addition to getting the information you need, you will begin to get a sense of how responsive the vendor is and how comfortable you are with them.
- Document review – managing costs and litigating effectively
Document review and production can drive up the costs of a litigation significantly. Vendors who are savvy in facilitating large-scale reviews should be able to offer a suite of services designed to help make your document review effective, relatively cost-efficient, and accurate (such as, e.g., predictive coding and AI). Moreover, your vendor should be able to offer early case assessment and help you to select the tools that will help you litigate your case most effectively.
For cases that involve large-scale document reviews, companies should also consider partnering with a vendor that can provide a managed review (i.e., document review that is performed by a team of dedicated contracted reviewers and is supervised by an in-house manager to ensure accuracy and consistency). Partnering with one vendor that can provide smart review tools and a managed review will enable you to streamline and coordinate efforts, likely making review and production a faster and more cost-effective process.
Finally, your vendor should have policies and methodologies in place that are designed to ensure that your production is internally consistent and defensible in court. (And your vendor should be prepared to testify as to its policies and methodologies if needed.)
Accordingly, here are some questions that you might ask your vendor.
- What review platform(s) do you use?
- What assistive technology do you offer?
- Do you offer early case assessment?
- Can you offer managed review? (If so, is the managed review contracted or in-house? What is the selection process for your managers and reviewers?)
- Will there be a case manager assigned to my matter to ensure continuity?
- Do you offer 24-hour and weekend support?
- If needed, are there individuals at your company who can provide testimony regarding your policies and methodologies?
With respect to review platforms and assistive technology, it’s important to note that some are simply better than others. (A clunky platform or ineffective AI can result in dozens or hundreds of additional wasted billable hours.) And, when it comes to large-scale document reviews, a vendor’s approach to case management is of utmost importance, so it will be important to have a case manager staffed to your matter who you can trust.
- Choosing the right partner – seeing is believing
Having an initial conversation with a vendor may tell you about its capabilities, approaches, and experience. Some of the most important qualities, however – responsiveness, speed, accuracy, competence, continuity, and your vendor’s ability to take a proactive role in your matter – can only be determined through experience. Consider trying out a few vendors, and asking others who have worked with them (e.g., outside counsel) about their experience and recommendations.
Hannah T. Joseph and Kyle Vieira, the co-authors of this article, are attorneys with the firm’s litigation group, where they focus their practices on trade secrets law, restrictive covenants, employee mobility, and unfair competition.
Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our hand-picked team of lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment, and are recognized as a leading authority in trade secret, noncompete, and unfair competition law. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.