We’ve written quite a bit in this space about the vexing question that many in-house legal departments have had to ask themselves: do we want to handle our eDiscovery workflow in-house or outsource it to a qualified service provider?
If you’ve done your due diligence and decided you want to outsource at least a portion of eDiscovery workflow to someone else, you now need to figure out who that will be and make sure it all works well for a price you can afford.
To help in-house legal professionals understand the tactical considerations involved with outsourcing eDiscovery, LexisNexis sponsored the third in a three-part webinar series hosted by EDRM, a guidelines and standards organization that creates practical resources to improve eDiscovery and information governance.
The panelists characterized the workflow for outsourcing eDiscovery as a “three-legged stool” comprised of In-House Legal, Outside Counsel and Third-Party Service Providers (e.g., software vendors, hosting companies, managed services providers). The webinar identified five key areas – across that three-legged stool – that need to be carefully considered as you begin your journey to outsourcing eDiscovery:
1. Workflows. It all starts with process, so it’s crucial to map out workflows between your in-house team, your third-party service providers and your outside counsel. For example, who will be responsible for the initial collection of eDiscovery data, loading those files into a database and immediate culling of the non-responsive documents? It’s likely you can reduce the initial data set by up to 85% by having your service provider handle this first piece, leaving you with a much smaller group of documents to review by either a managed review service or your outside counsel.
2. Personnel. Make sure that you have the right people with the right skills for each phase of the outsourced eDiscovery workflow. This rule applies in both directions. It’s important to have highly skilled and well-trained litigation technology professionals who are handling the process of hosting and securing your eDiscovery data, for instance. When it comes to de-duplication scans, though, it’s not necessary to pay costly hourly fees for someone to operate software tools that do the heavy lifting for you.
3. Security. Cybersecurity is a serious threat throughout our industry, so it’s critical to work with partners who have the most rigorous information systems security protocols in place. One way to verify this is to inquire about industry certifications, such as ISO 27001: 2013, ISO 9001, SOC1 and SOC2.
4. Privilege. The general rule of thumb is that, as long as the technology provider is working at the direction of outside counsel to assist with providing legal services, work created by the service provider (as well as communications involving the provider) should be protected from disclosure. Legal experts advise to make sure there is a clear paper trail between your outside counsel and third-party service providers to establish that your attorneys do not waive the privilege by contracting with a technology vendor or other litigation support provider.
5. Accountability. The buck stops with the client, so you need to make sure that all third-party service providers and outside law firms are held accountable for their performance in the new outsourced eDiscovery workflow. You may want to establish clear metrics for performance in advance and regularly evaluate each service provider on a quarterly basis, at least until the outsourcing process has been established and is functioning smoothly.
There is no way around the fact that outsourcing part or all of your eDiscovery workflow is a major undertaking with serious implications. But if that pathway is the one that holds out the greatest potential benefits to your organization, narrow your focus onto a few manageable areas – starting with these five considerations – and you will find yourself moving down the road in the right direction.
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- David Yerich, director of eDiscovery for UnitedHealth Group
- Shimmy Messing, chief technology officer for Advanced Discovery
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Photo credit: Flickr, Jorge Láscar, The Court of Amonhotep III – Luxor Temple (CC BY 2.0)