Between 20 and 50 percent of all costs incurred in federal litigation can be attributed to eDiscovery. With eDiscovery and litigation support driving such a significant portion of the costs in litigation, it’s essential that law firms seek out and pick the right litigation support partner.
In-house eDiscovery can be exorbitantly expensive, leaving a sour taste in clients’ mouths once they receive the bill. But at the same time, it’s difficult to trust a third party with the essential tasks that fall under the umbrella of litigation support. That’s why we’ve identified 5 red flags to avoid when evaluating a potential litigation support service partner — so you can keep costs down without sacrificing effectiveness.
1. A Poor Data Security Plan
Keeping your data secure is a challenge even in the best of times. Globally, cybersecurity spending is forecasted to exceed $1 trillion. If you or your client is contributing to that $1 trillion spend, it’s more than reasonable to worry that some third party isn’t going to meet your security standards — especially considering the highly sensitive data that is likely involved in your lawsuit.
Ask your prospective litigation support partner what their cybersecurity protocols are. Are they using a framework like Mitre’s ATT&CK or NIST’s CyberSecurity? Do they have endpoint controls or network segmentation in place? If they can’t or won’t provide an answer that satisfies you, it’s probably best to move on.
If you’re on the fence, consider negotiating for addendums that shift the risk off of your firm. If your potential partner resists signing, for example, a data processing agreement, it could be that they lack confidence in their internal security processes.
COVID-19 throws an additional wrench into the machinery; even after business returns to normal, the odds are good that more and more workers are going to be working on a remote basis. See whether your partner uses designated document review workspaces and assess the protocols they rely on to reduce risk. That’s not to say that remote document reviews can’t be safely conducted — if your partner does permit remote document review, ask about the security of their communication channels and any other security practices they have in place specific to remote work.
2. Inflexible Fee Structures
Increasingly, clients are paying attention to line items in their legal invoices. Respecting client’s fee-sensitivity is a significant part of why firms outsource eDiscovery in the first place; why rack up billable hours for a task that is better suited to a third party anyhow?
But clients often don’t understand why they’re being billed for hosting, data processing, technical support and other costs. And they don’t like seeing a large portion of their bill going to ambiguous “discovery costs.”
The right litigation support service partner will make handling this challenge easier. They’ll work with you to see what fee structure is both equitable and likely to be positively received by the client. One option is to seek out partners who bill a flat fee based on the number of documents reviewed, rather than by hours or a host of separate service costs.
3. Poor Defensibility Practices
With the highly technical nature of modern eDiscovery, keeping an eye on defensibility is essential. The right litigation support partner will document everything — AI methods, search terms, review metrics, review exceptions, chain of custody and more — so that you have access to all the information you need to demonstrate why your eDiscovery approach was reasonable.
Crucially, this documentation should also include the results of quality control checks. Your litigation support service partner should, for example, test samples of privileged documents for sensitive information or non-responsive documents for responsive concepts,
When you’re assessing a potential partner, if they don’t emphasize the importance of defensibility and aren’t willing to get into detail about their process, it may be time to move on.
4. All Tech, No Experts; All Experts, No Tech
Is your litigation support partner little more than a collection of contract lawyers? What about the reverse: Is your prospective partner a team of technologists without the subject matter expertise necessary to think critically about your eDiscovery project?
If modern eDiscovery were just a matter of manpower, you would have simply taken care of it in-house or hired contract lawyers to help. But it isn’t. A cost-effective document review requires expertise in advanced AI and eDiscovery software solutions. At the same time, a litigation support partner with few legal experts on its staff won’t have the resources needed to provide their essential subject matter knowledge.
For instance, the practice of predictive coding — where a legal expert codes a sample set of documents for responsiveness to teach an AI model what to look for — is what’s known as a “garbage-in, garbage-out” process. If that legal expert doesn’t have experience or enough time to devote to their task, the results will be less than ideal.
When assessing any potential litigation support partner, make sure your team has a healthy mixture of AI specialists, data scientists, paralegals and attorneys — not to mention project managers and customer success experts. Having access to a healthy mix of resources is key to success in eDiscovery.
Many litigation support partners view their relationship with law firms as a purely transactional one. The firm provides a brief on what terms to look for, what concepts are responsive and so on; the litigation support service partner acts like little more than a machine that spits out document review results.
Ultimately, this will cost your firm both in dollars and evidence. A superior litigation support partner will act more like — well — a partner. They’ll provide strategic guidance and communicate challenges and opportunities.
Consider the fact that an eDiscovery brief is necessarily crafted before the actual document review takes place. When your litigation support partner actually digs into the document set, surely you would want them to alert you to potentially responsive concepts they uncover that weren’t described in the initial brief. This is just one example, however; in reality, there is a multitude of creative, strategic actions a partner could take so long as they don’t perceive the relationship to be a purely transactional one.
Identifying litigation support partners like this isn’t entirely straightforward, unfortunately. Asking them directly whether they offer strategic guidance is one option; so is examining their past performances for evidence of creative thinking.
Contact us today to learn more about our Litigation Support Services.