6 Tips to Hiring an eDiscovery Partner

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Feb 06

1. Don’t Hire a Plumber to do a Carpenter’s Job:  In the current economy there will be a flock of vendors who claim they can do work that is well outside their sweet spot.  However, in reality, many have no relatable experience to the project at hand. When identifying an e-discovery expert, make certain they have experience in the work being proposed.   When looking for a computer forensic investigator, make sure to hire one who has testifying experience and who has conducted forensic investigation before.  The same logic applies when you need an expert in e-discovery as it relates to civil litigation.  Don’t hire a forensic investigator who has never worked in civil litigation. Hire an expert that has experience working on high-volume civil discovery matters.  The timelines, rules and objectives are all radically different than those found in a pure investigative matter.

2. Experience is Important:  E-Discovery is not an ancient endeavor.  In fact, it has only become a litigation staple in the last decade or so.  The market is littered with companies bearing the “experience” of a leader in servicing e-discovery needs.  With a little investigation, though, most companies cannot prove up that experience.  Pushing out paper for a Second Request is not the same as forensically collecting and culling electronic data from hundreds of different sources.  Yet there are hundreds of e-discovery vendors that count their experience in pushing paper as legitimate ESI experience.  Experience should be relevant, tested and defensible.

3. Who is the Man Behind the Curtain?  Flashing lights and big server rooms are nice but they don’t mean the company is actually doing the work.  The “high-tech” showroom doesn’t mean the company is actually pushing the buttons.  When hiring a vendor find out who is doing the work and make sure the work is not being hired out to sub-contractors who have no visibility into your case.  The lack of visibility means you may not be getting all the advice you need.  When choosing a vendor, choose the company that maintains a strong relationship with the work being proposed.  Vendors outsourcing to other vendors is fine but only when the two parties have an established and transparent partnership and the client is a party to the decision.

4. One Size Doesn’t Fit All:  Being an end-to-end service provider is the goal for many of the e-discovery vendors out there. But the reality is that most vendors are either not truly end-to-end (i.e. see above) or they are spread too thin to scale for larger projects--without bringing in outside help.  Being an end-to-end provider does not equate to being “best in breed.”  In fact, it rarely equates.  The end-to-end provider has no incentive to build an efficient e-discovery process for the client.  The provider is dis-incentivized to shrink data volumes since reduced data volumes will ultimately trim their bottom line.  Find a vendor that is a trusted advisor who is willing to trade short-term profit for long-term profitability.

5. More Expensive Does Not Mean Better:  The bidding process is rarely logical and there are those who do the choosing that automatically gravitate toward the highest or lowest bid.  In the case of e-discovery the higher bids tend to cover ingesting the highest volume of data at the very threshold of the case. Higher data volumes justify higher fees to process the data--despite the fact that experience tells us more than 80% of collected data can be culled out by virtue of it being duplicative, irrelevant or outside the relevant timeframe.  Likewise, the lower bids will leave out certain essential services—like culling and production costs--to artificially lower the bid but it does not change the fact that the services will still need to be performed in order to get your data properly processed.  Do your homework before picking a bid and match it to your needs.  Don’t let the vendor match your case to their needs.

6. Build Lasting Relationships:  The underlying theme running throughout these tips is to build a working relationship with your e-discovery partner.  Find a partner that has the right level of experience, who will deliver reliable advice, and who can perform tasks within your budget.   A working relationship like that will save you and your client considerable dollars and help you deepen your relationship with your client.

David S. Weber is General Counsel for Digital Discovery www.digitaldiscoveryesi.com and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms. He can be reached at dweber@digitaldiscoveryesi.com.