For law firms who seek to bolster their internal e-discovery capabilities — either to capture more billable work or to provide better client value-add — one of the most daunting challenges is getting the various appendages of the firm to become aware, and appreciate the value, of the tools and resources the firm has invested in.
There is an assumption that just because a firm has “brought [insert software of choice] in-house,” that said solution is being used by everyone all the time. Often, this is hardly the case. And the problem can grow more acute the bigger and more diffuse the firm is, both in geography and operations — though there are certainly exceptions (e.g. Winston & Strawn; Vinson & Elkins, etc.).
It’s useful thinking about larger law firms as federations of solo attorneys operating under one marketing banner. There are shared resources available to each, but it doesn’t mean they are being consumed.
Below are observations and ideas derived from, and specific to, a conversation we had with a national e-discovery manager at an AmLaw 200 firm. The firm has more than 30 offices across the United States and has two in-house e-discovery solutions, but neither is being used to capacity.
Multiple obstacles to increasing adoption of internal tools exist
- Many attorneys aren’t aware of the e-discovery solutions that are available to them. Most have their own preferred vendors and/or preexisting relationships. “Our firm has more than 30 offices and they’re spread out all over the country. Basically each office acts like its own separate company,” the e-discovery manager says.
- In addition, firm clients often have preferred vendors or internal tools that they demand the firm use. The firm’s insurance provider also has preferred vendors that it promotes. In other words, there are many cooks in the kitchen.
- Attorneys are wary of passing through the costs of internal discovery tools to the client (e.g. per GB processing charges), especially if they’ve not done so previously and/or aren’t aware of the exact source of the prospective costs to be passed through. The firm’s e-discovery manager describes the dilemma as follows:”There’s this impression among our attorneys that (one of our current solutions) is a ‘free’ tool, because it doesn’t cost us much and we’ve never billed the client for it in the 10 years we’ve used it. Now I’m saying, ‘We have to past the cost (of using the newer internal tool) on to the client’ and our attorneys aren’t willing to do that because, before, the cost to the client was nothing. What (our attorneys) don’t understand is that using the older, less efficient tool is costing us more in labor.”
- For the firm, building a value proposition and showing ROI for some tools/vendors over others is nearly impossible at this stage for two reasons:a) The firm has not tracked discovery usage metrics and thus has nothing to benchmark against.
b) The value of e-discovery services — unless something goes wrong — is largely invisible to the client, and thus there is little incentive for attorneys to change their current way of doing things.
- Fees for user licenses of certain in-house solutions inhibit growth of internal usage. While the cost to process data with those tools might be much lower than turning to a vendor, the solutions are often not feasible for staffing reviews. If, hypothetically, the firm is billing out review staff at $150 per hour, it does not make sense to pay $200 per license per month for every one of those reviewers if the review only lasts a couple days.
Ad hoc approach to vendor selection increases costs, headaches
- The firm loses out on capturing review and other e-discovery related fees when the client dictates the vendor. If, for instance, the client demands that a Relativity service provider be used, the firm only has a handful of staff attorneys qualified to perform a Relativity review. And associates can’t be put on the project because their billing rate is too high. Thus, most of the review is outsourced.
- The firm can’t get preferred rates from vendors with which they have no official relationships.
- The firm often has to eat costs that arise from unexpected fees of the vendors with which its attorneys contract. That predicament generally ensues as follows:
a) Attorney agrees to certain e-discovery related rates with client.
b) Attorney, perhaps not well-versed in e-discovery or its associated costs, contracts with vendor.
c) Vendor costs end up being higher than rates attorney has agreed to give client.
d) Firm’s e-discovery manager attempts to negotiate down or exclude certain vendor fees.
e) Remaining overages are paid by law firm.
- Each external vendor has its own way of doing business and fee structures, which mute the ability of the firm to keep costs in check and control the quality of the process.
The challenge to increase internal adoption of a given e-discovery solution is largely one of education. In this case, the e-discovery manager is not just the discovery operations and logistics quarterback, she is the champion, liaison, marketer and head of customer (i.e. firm attorneys) success. In a sense, she is a rainmaker working in tandem with the provider trying to acquire the business of attorneys and other potential users — and it is interesting in that light to hear the manger refer to attorneys as “internal clients.”
This battle is one that must be hard fought, no doubt, but worth pursuing if it leads to more internal efficiency and, thus potential billable hours; cost reduction and avoidance; higher quality of work life for those involved in the e-discovery process; and the other potential value adds that may result from unifying and streamlining the discovery process (e.g. more data security; less risk exposure arising from vendor error or poor quality of work; less potential for fee disputes). Centralizing the e-discovery function inside a firm also generally results in consolidating decision making with the person or group of people who are most knowledgable about e-discovery and its associated costs, complexities, and potential value adds.
What we’ve found is that it helps to have the e-discovery function consolidated around an internal operations group with some amount of authority — whether that’s litigation support, IT, an e-discovery practice group, or a department that exclusively deals with discovery. The fact that this specific firm hired a top-notch national e-discovery manager — a role new to the firm — to track usage metrics, run point on high-value e-discovery projects, and develop value propositions for certain tools and vendors over others suggest that decision-makers at the firm understand this consolidation of authority is needed and of value.
Litigation support professionals and others who are waging this internal battle should be forthcoming with their vendor or software provider about the resources they need to develop the value proposition and show ROI. They should demand from, and work with, the provider to develop collateral, metrics, training opportunities and other materials to make a strong internal case for broader adoption. By the same token, the provider should be enthusiastic about these efforts, and work to reduce the friction involved in such collaborations. After all, in this struggle, both parties are on the same side.
Authored by the Logikcull Success Team. They can be reached at firstname.lastname@example.org.
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