"Another barrier to widespread use could well be resistance to the idea from outside counsel, who would stand to lose a historical revenue stream," Rand said in the study's summary.
Not for 'Dabblers'
Reed Smith created an e-discovery practice group within the firm that hasn't insourced the entire process, but rather provides the legal and some technical support to help guide clients throughout the spectrum of e-discovery needs. David Cohen, head of the group, said competing with e-discovery vendors really only makes sense if a firm has a dedicated team in-house that can give the same level of service or better for the same cost or cheaper than the vendors.
"Only law firms are in a position to provide end-to-end e-discovery services (whether from the outset or through secondary review after primary review by others) and firms that do this optimally can save their clients a great deal of time and money as compared to vendors or other service providers," Cohen said in an email. "Law firms able to offer the right capabilities and resources can earn money in this practice area, just like any other area of practice where they can provide high value to their clients."
While a vendor will quickly comply with a request to process several gigabytes of data or review millions of pages, a lawyer should look first to see whether all of that processing or review is necessary or if it could first be culled down through negotiations with the opposing counsel or the use of technology, Cohen said.
Cohen said it is a big investment and not something for "amateurs" or "dabblers."?"There are some areas of e-discovery services that law firms ought to stay out of altogether," Cohen noted in an email. "In situations where a company may be second-guessed about how particular services were provided and/or where someone from the provider is likely to have to testify (e.g., forensic collection or analysis of data for high-stakes litigation or restoration of deleted or corrupted data) law firm lawyers don't want to be put in the position of being both counsel and fact witnesses."
Jackson Lewis national e-discovery counsel Ralph Losey recently decided to outsource the entire e-discovery process handled by the firm's litigation support staff. Instead, the firm focuses only on the legal issues surrounding e-discovery.
Losey said the business side of e-discovery will only become more of a money-maker, but not for law firms.
"I don't think the law firm should be in the business of making money from clients for selling non-legal services," Losey said. "Law firms don't have captive court reporter companies. I think the whole model of law firms running side businesses is flawed."
Ancillary e-discovery work at law firms started out of necessity when there were no decent vendors. There are now plenty of good vendors, Losey said.
"I'm so glad to have my law firm stop doing a business and start focusing on law," Losey said. "It's a big headache I don't have to worry about and stops the question of how to make money."