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BY: GEORGE SOCHA AND TOM GELBMANN, CO-FOUNDERS OF EDRM AND APERSEE -- Law firms are accelerating efforts to bring e-discovery in-house. We have seen a recent uptick in announcements that law firms have developed or expanded their internal e-discovery capabilities. Providers are quick to note each time that a law firm licenses their e-discovery software, for example, and in turn law firms are quick to provide quotes such as this:
“The scalability and features that [the review platform] offers positions us to efficiently meet the challenge of ever-increasing data volumes.” said [the] manager of legal technology and litigation support for [the law firm]. “Besides [the platform’s] ability to handle a large number of documents, [the platform] allows attorneys to identify key issues within large data sets earlier in the process, helping us reduce our clients’ costs throughout review.”
Evaluating such pronouncements in light of private discussions we have with provider, law firm and corporate personnel, we have identified five factors driving this trend.
Promotional value: Law firms hope that by publically promoting expanded e-discovery capabilities, they can bolster their images with existing and potential clients. They will appear, they hope, to once again be in charge of the entire litigation process, including the part that deals with the discovery of electronically stored information.
Control: Law firms are interested in improving their ability to manage their cases and in particular to manage e-discovery, an area that has become one of the most expensive aspects of a modern lawsuit. They want greater control over costs, especially third-party costs; they want a better ability to set deadlines and manage to those deadlines; and they want to be able to more effectively set priorities and then ensure that those priorities are maintained.
Revenue: Law firms have been frustrated as they see e-discovery revenue bypass them. They would prefer that clients spend more money on e-discovery activities that the law firms perform and less on the work done by service providers. Some law firms attempt to bring e-discovery processing capabilities in-house, some seek to host data and capture the hosting revenues, and yet others―the most farsighted in our estimation―seek to deliver higher-quality, higher-value legal work through effective use of e-discovery tools, especially those designed to assist with analysis of data.
Disillusionment: Some law firm efforts to bring e-discovery capabilities in-house have been driven by law firm perceptions that service providers perform poorly.
Better and less expensive software: E-discovery software has improved considerably in recent years and simultaneously become less expensive. It is far less likely to fail to do what it was marketed as doing. It comes with a rapidly increasing range and depth of capabilities. It is easier than ever to understand and use. And the cost has come down considerably. As a result, law firms are much more likely to be able to actually use e-discovery software and use it effectively.
We also have identified four sets of barriers that can prevent firms from bringing e-discovery capabilities in-house, retard their ability to do so, or require them to devote greater resources than they anticipated if they are to be successful in this enterprise.
Insufficient processes: If a firm acquires e-discovery technology but has failed to put in place the processes to make effective use of that technology, it has wasted its money. And we have seen a lot of waste. Law firms hoping to be successful at attempts to bring e-discovery in house need robust, repeatable, testable and documented processes. They need to be able to demonstrate to clients that their processes are at least as good as those of the service providers that otherwise would be used―else they potentially open themselves to the charge that they have put their own pecuniary interests ahead of their fiduciary duty to their clients.
Unqualified people: Similarly, law firms hoping to be serious contenders in the e-discovery arena need to have qualified personnel on board. These need to be people with the training and experience to carry out the processes discussed above, using the technology obtained by the firm, so as to deliver results of the quality expected by clients and at a cost that clients can abide.
No or unenthusiastic adoption: Law firm efforts to enhance e-discovery capabilities are doomed to fail if the firms themselves do not support the efforts. If the firms’ attorneys eschew using the technology the firm has acquired, undercut the processes the firms have attempted to put in place, and bypass the personnel the firms have hired or trained, they will be headed for a train wreck. If firm management does not support the effort, once again failure will ensue.
Cutting out service providers: No matter what e-discovery technology law firms acquire, what processes they put in place, and what people they hire, inevitably the firms will find that they still need to turn to outside service providers. Sometimes it is a question of time or volume―more data needs to be processed than the firm can accomplish in the time available, for example. Sometimes arcane requirements necessitate turning to specialists―when, for example, three different archived massive proprietary databases need to be restored and merged with an existing one, it is unlikely that any law firm will have the resident capabilities to accomplish that task. And, at times, a client may mandate that the firm work with a specific provider. Given this, firms should establish and nurture quality relationships with qualified providers.
Stay tuned for future trend analyses!
Last year George Socha and Tom Gelbmann began adding e-discovery events, press releases, and articles to Apersee.com and more recently to EDRM.net. They now have a catalog of more than 2,000 items.