We know that over the past several years the challenges that in-house counsel face have become increasingly onerous with respect to litigation discovery and the issues around identification, preservation and the capture of relevant materials. However, the dynamic has been shifting as organizations and in-house counsel become more fluent in understanding those issues.
Over the next three installments we will look at why it is more important than ever for in-house counsel to focus proactively on setting up parameters for active management and control of discovery. The need for this focus is acute because of increasing volumes of electronically stored information (ESI), the resulting increased risk and cost to preserve and collect, and the increasing time and cost to review. These risks and costs are exacerbated when an organization is dealing with multiple litigation matters and has not yet developed a process and methodology to manage and control discovery. Without a controlled approach, risk and cost are magnified as outside counsel employ disparate processes, resulting in loss of information sharing, as well as an obvious opportunity for eruption of costs.
These are the questions we will ask and answer:
- Why should the organization proactively direct, manage and have access to the technology and relevant repositories being used by all outside counsel?
- Why should in-house counsel direct, manage and control the service provider landscape used to provide support services for all outside counsel engaged by the organization?
- What is the benefit to the organization to take control of processes that have historically been left in the hands of outside counsel? Why is it in the best interest for in-house counsel to regain control over costs and manage the knowledge and work product developed during the consumption of evidentiary materials?
Let’s look at the first question:
Why should the organization proactively direct, manage and have access into the technology and relevant repositories being used by all outside counsel?
We know that issues abound when organizations let outside counsel or external resources direct the approach they should take around the collection, review and use of technology solutions. When organizations depend on external resources to control and direct discovery, the uses of time and money are inefficient, especially when control and direction are undertaken without a thorough understanding of infrastructure, organizational structure, and information management. Costs and mistakes can be compounded or repeated with new or overlapping discovery demands, lack of coordination or understanding of prior efforts, and the inconsistent application of methodologies for documentation and use of technology. Cost, risk and inefficiency are further exacerbated if outside counsel is working with document collections that were either part of other litigation matters, or were subjected to review in related matters by other firms. Instead of being concentrated, core understanding and knowledge about the case is diluted. The result is a loss to the organization in time, money and intellectual property.
We have seen significant benefits when organizations proactively take control of discovery rather than relinquishing control to outside counsel. The benefits are substantial with regard to their abilities to:
- Develop an internal business process for legal hold, preservation and collection
- Effectuate cost controls with the multiple outside law firms engaged to support various matters
- Find better value and purchasing power for vendor services
- Control the extensive costs associated with inefficient review for privilege and production
- Capture, consume and leverage the intellectual property that comes out of document review
What steps can be taken to realize these benefits?
1. Identify a trusted resource within the legal department who understands the organization, its patterns of dispute, its goals for resolution, and its issues surrounding discovery.
Why: Finding and then relying on outside resources for how best to approach discovery can be very costly and time consuming. Outside resources have to get up to speed on the infrastructure, organizational structure and patterns of dispute and resolution to develop a plan for each and every time a discovery need is anticipated. If the organization invests in a staff or contract resource who fully understands the organization’s landscape, the amount of time and effort involved in responding to a discovery request can be mitigated greatly and will result in a more expeditious and repeatable process.
2. Develop a standard plan for the approach to supporting new litigation efforts.
Why: An organization’s discovery process should be planned with an understanding of the internal IT infrastructure and the organization’s information management, and by mapping how business units and employees interact with that infrastructure and store information. Often called a “litigation readiness effort” or a “litigation response plan,” this process documents where information is stored, how various applications work, how back-ups and emails are managed, how staff can store information, if and how they have the ability to use information at home or on mobile devices, etc., and how the organization will keep this information updated, and how the organization will respond when there is a litigation trigger.
3. Define the service provider landscape that the organization uses and that outside counsel may use.
Why: Organizations should capitalize on their purchase power and contract with preferred providers for all discovery-related tasks. (We will be covering this topic in greater depth in the next installment.)
4. Standardize and control the methods and technology for review for privilege and production.
Why: Attorney time fees associated with review are by far the biggest costs in litigation discovery. Management of that time is critical to keep costs proportionate to the dispute and the strategic and tactical goals of the litigation. With respect to technology, there are a large number of review platforms available to the industry, and an even greater number of notions of how to use them. Each technology comes with its own set of features, functionality, interface and other components that support the review. While most of these will deliver a standard set of required features, there are components that may or may not be added at additional costs to the user. Organizations that rely on outside counsel to use whichever technology the firm selects are subject to two variables of cost, risk and control: review will generally be subject to that firm’s ability to support the project internally, or review will be subject to vendor costs and expenses incurred by the firm on the client’s behalf, typically on a one-off purchase of services.
There is tremendous value for organizations to use their own multi-case purchasing power in negotiating contracts with review platform providers, and then to direct their outside counsel to use that resource. Apart from managing the costs, organizations also experience more transparency in understanding the vendor costs, and they can work on ensuring that the budget for the process can be realized. Finally, by centralizing services with a preferred vendor the organization has access to its litigation collections and productions for reuse in other matters.
5. Ensure the organization’s access to the review repositories.
Why: The time spent coordinating efforts or understanding the results from the review process would be simplified greatly if in-house counsel had access to the document repositories during culling, search and review. Rather than taking a completely hands-off approach, the ultimate client can evaluate important documents, evaluate the size and therefore the cost of review, and provide context to outside counsel for a true early case assessment. This will also be simplified where the organization has identified and selected their review tool of choice so that accessing and using the application does not become overly burdensome.
In our next installment we will address why in-house counsel should direct, manage and control the service provider landscape used to provide support services for all outside counsel being engaged by the organization.