Understanding how vendors’ approach the selling and implementation of e-discovery technology is a good barometer on how the market has matured and where the problems lie for the customer.

Before 2003, most e-discovery sales were service related and outsourcing was the norm. The focus was on the right side of the EDRM model (processing, review and production). How ESI was collected and preserved was not attracting a lot of attention back then. Most collections were either forensic acquisitions or manual “drag and drop” into a folder across a corporate network.

Beginning in 2004, we started to see new technology entering the market that could do defensible enterprise, wide automated collections and processing. This trend was driven by the need to properly preserve metadata and risks of spoliation during preservation. Most sanctions delivered over the last six years have been about the failure to properly preserve the evidence.

Because e-discovery and the technology driving it was in its infancy, vendors were using a consultative approach to selling. That was because most attorneys and IT departments at that time did not understand e-discovery and how to properly conduct it. They relied on the vendor to show them the way.

The sales executive would make a first call to a potential customer with his sales engineer and so-called “e-discovery specialist” on hand to explain the technology to legal and IT, articulate the emerging e-discovery laws, the risk of noncompliance and why the technology was necessary to a defensible production. The terms “systematic, repeatable and defensible” originated from vendors and the herd of sales executives sent out to spread the message.

Until 2008, the majority of e-discovery sales continued to be outsourced. However, that year, we started to see a definite shift from a majority of companies outsourcing e-discovery to instead purchasing the technology for all phases of the EDRM life cycle. The drivers for this paradigm shift was the rising costs of outsourcing, ease of use of the new technology and companies realizing that could do it themselves just as well as a vendor. E-discovery was finally going in-house!

Vendors started to crowd the market and both corporate law departments and law firms were being inundated with sales calls. On an average day, a typical legal department would receive dozens of vendor-related emails.

By 2010, the market had matured to the point that most in-house legal and IT departments understood the requirements of the new FRCP and what was needed to collect, preserve, process, review and produce ESI. Therefore, the consultative approach to selling technology started to become less important.

This has caused the per gigabyte price to collect and process ESI charged by service vendors to drop significantly and new pricing models to emerge based on flat rates. Service vendors are also offering to work on-site and drive the installed technology for the customer.

Vendors are now taking a lean and mean approach to selling technology. Sales executives are focused on spotting the sales opportunity, getting the first meeting and identifying the pain points. Corporate legal departments want a reasonably priced technology from a trusted vendor that makes sense in terms of integration with existing technology, ease of use, defensibility and return on investment.

Companies that have purchased e-discovery technology in the last several years are now struggling to make all this new technology work as promised. Vendor resources are focused less on front-end sales and more on the post-sale needs of the customer to ensure a successful implementation and a happy customer willing to refer new business.

Companies desperately need help on running the new technology purchased, implementing e-discovery best practices and handling project management and workflow. To that end, we see many e-discovery specialists now being hired by the customer for that purpose and project management in demand. Execution is the name of the game.

E-discovery is serious business with high risks. Purchasing the technology will not mitigate that risk. Building best practices and project management workflow around the technology is necessary for a defensible strategy.

The roar of vendors pitching products and services has unfortunately not subsided yet, but they are getting the message loud and clear that more energy needs to spend on the back end once the technology is installed and the sales executive has stopped calling.