6 Reasons to Insource Litigation Support

To be transparent, I work with a vendor. To be fair, I'd like to outline a little of what we see every day across a large number of law firms and corporations.

There has been great interest in recent years to bring eDiscovery "in-house", whether that in-house is the law firm or the corporate law department.

In the law firm, we see that to make eDiscovery in house successful, there has to be both will from a strong core leadership committed to litigation support technology and consensus of an entire partnership. When you factor in the licensing costs of technololgy, the demand for flexible or constantly expanding infrastructure, and the need to attract and keep talented staff, the firms have to agree as a whole to capitalize and sustain the litigation support effort. After looking at the cost factors and the longer-term needs to sustain the effort, many firms back away from full in-house eDiscovery. Instead, they build a core capability around their very talented staff to manage cases during and after initial document/data productions, and rely on vendors for most of the EDRM "left-side" work.

In the corporate law departments we have seen somewhat of a leveling off of the demand to bring eDiscovery in-house. Companies that see a large volume of litigation tend to build around the tasks of litigation hold, litigation response plan, responsible and forensically sound preservation and collection of ESI, and in some cases, a potent means to filter data. That filtering, done responsibly, helps them limit the volume they send to outside counsel or send to their selected vendor for hosting, review and production.

Those corporations have the required will and the top-down management to effect change and implementation. The trick for them is to try to read the future. Will they have the caseload to warrant building more? In which directions will eDiscovery technology go? Certainly basic tools are less expensive than in years past, but the cost-saving analytics tools deployed in-house will have to show enough ROI to justify their purchase. Many have backed away from in-house deployment and rely on strong vendor relationships to supply them a choice of tools and approaches that they could not necessarily justify on their own. Chuck Kellner D4 www.d4discovery.com

Having been on both sides of the fence myself, there are some great things about bringing it into a law firm or outsourcing... it's a 6 one way half a dozen the other argument and really depends on the types of cases and immediate needs. However, I feel there is a huge missing component and both sides have biases... first the biases.

Every GB a law firm cuts out is a GB that attorneys can't review. There's no incentive to be as efficient as possible because they're not the ones paying for it in either model (insourced our outsourced). It makes sense for law firms to process and host internally because of the competitive advantage, and quite frankly it is a source of revenue. In a field where ethics is "required" annually, it just stands to reason that putting this in the firm's hands when there's no financial incentive may not be the "top" choice.

Every GB a service provider cuts, is $300 - $800 off their bottom line. Again, if a corporation hires a service provider directly, there's no incentive for them to be as efficient as possible because it hurts their bottom line. Only morals has them do the right thing. I've heard plenty of vendors say, "Sure we can TIFF Excel files for you!" In order to effectively use them, then have to be involved all the way along and have a big picture, not just get bits and pieces.

What really makes sense more than either of these two models is to have a Lit Support person inside the corporation, who understands the process, can oversee the service provider getting the data, can work with the attorneys to ensure they get what they need, and the attorneys only review the documents that are subsequently provided for review...whether that's an initial seed set for review for the implementation of predictive coding, or a more formal manual review. In this circumstance, I think you get the best of both worlds. Why it hasn't caught on quicker is a complete mystery. The good news is... Lit Support jobs aren't going anywhere, they're just changing locations.

Having been on both sides of the fence myself, there are some great things about bringing it into a law firm or outsourcing... it's a 6 one way half a dozen the other argument and really depends on the types of cases and immediate needs. However, I feel there is a huge missing component and both sides have biases... first the biases.

Every GB a law firm cuts out is a GB that attorneys can't review. There's no incentive to be as efficient as possible because they're not the ones paying for it in either model (insourced our outsourced). It makes sense for law firms to process and host internally because of the competitive advantage, and quite frankly it is a source of revenue. In a field where ethics is "required" annually, it just stands to reason that putting this in the firm's hands when there's no financial incentive may not be the "top" choice.

Every GB a service provider cuts, is $300 - $800 off their bottom line. Again, if a corporation hires a service provider directly, there's no incentive for them to be as efficient as possible because it hurts their bottom line. Only morals has them do the right thing. I've heard plenty of vendors say, "Sure we can TIFF Excel files for you!" In order to effectively use them, then have to be involved all the way along and have a big picture, not just get bits and pieces.

What really makes sense more than either of these two models is to have a Lit Support person inside the corporation, who understands the process, can oversee the service provider getting the data, can work with the attorneys to ensure they get what they need, and the attorneys only review the documents that are subsequently provided for review...whether that's an initial seed set for review for the implementation of predictive coding, or a more formal manual review. In this circumstance, I think you get the best of both worlds. Why it hasn't caught on quicker is a complete mystery. The good news is... Lit Support jobs aren't going anywhere, they're just changing locations.

If anything, this article coupled with Ralph Losey's is a good comprehensive argument on why companies should bring ediscovery services and the management of non-legal ediscovery services In-House and away from their Outside Counsel law firms.

Fortune 500 companies can compete just as well as law firms to negotiate contracts for ESI vendors and other non-legal services. In-House document review teams have the advantage of consistent knowledge and familiarity with the company's email and ESI. Most importantly, a company can know exactly where all of their data is and gain easier access to it when needed.

As General Counsels face more pressure to control legal spend, examining all of the "reasons for and against" from both of these articles can help in finding cost centers that can be controlled while not diminishing the quality of outside legal services provided.

I am sorry, but the article sounds more like a desperate attempt of trying to save jobs than actually convincing me that insourcing makes sense. If you are going to convince me that insourcing eDiscovery is the way a firm should go, than I would have expected one to discredit Mr. Losey’s arguments to outsource. Yes, I am a believer that law firms should be in the business of practicing law as stated by Mr. Losey and any expense that is not in line with that service, such as Forensic Collections and the Processing of ESI, should be performed by organizations that provide this level of service on a daily basis. I have had to opportunity to work with numerous law firms who provide eDiscovery services. I have also had the opportunity to fix their mess that started between the firm and the client during the eDiscovery phase of collection and preservation as well as processing.

Now I am not saying that all law firms are this way, but I have seen way to many failures to know where the competency lies. All the points made in this article, Trust, Accountability, Expertise, Cost Savings, Institutional Knowledge and Vendor Management exist for the external managed service team and I am not sure why would one would think different. In my experience I believe that Mr. Losey left out a sixth and important point. The ability of a vendor to be unbiased in regards to its moral and ethical obligation. Managed Service organizations have the duty to perform work in the best interest of the client which is not the law firm. I actually prefer the firms that introduce me to the client for typically I find many instances in which I can continue to save the client money for their internal processes can be improved. I never see a law firm offer its services to fix a client’s eDiscovery problems.

I will make the closing argument that if a law firm is providing eDiscovery and IT related services that these costs need to be transparent to the client and not hidden in the numerous hourly fees typically experienced by the client.