Law Technology Today From the ABA Legal Technology Resource Center
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In 2018, legal departments are continuing the push toward moving operations in-house. In Exterro’s 2017 In-House Legal Benchmarking Report, over 50% of responding legal departments reported that they now conduct most of their legal activities internally.
Whether this trend is evidence of the end of big law or just another swing of the pendulum between in- and out-sourcing doesn’t matter to in-house legal teams. They need tools that allow them to “do more with less.” With archives often containing petabytes of documents, emails, video, and unstructured data, the cost and time savings that e-discovery technology can achieve cannot be ignored.
Despite this imperative, most legal professionals don’t begin their careers with the know-how to buy e-discovery software. But that doesn’t excuse making a bad choice. The need is real, and substantial technology investments like e-discovery software must show a positive return on investment.
We talked to three e-discovery professionals who have made this critical decision and lived to tell the tale. They are:
- Tara Jones, Lead Paralegal for E-Discovery and Litigation at Oath
- Alayne Russom, Business Ethics and Legal Support Manager at Thrivent Financial
- Tom Mullane, E-Discovery Process Manager at United Technologies Corp.
In their experience, the best way to undertake the project was to ask—and answer—six big questions about their organization.
1. Is it the right time to purchase e-discovery software?
Typically, the buying process for business software starts with identifying a pain point and recognizing the need for a solution. In this respect, e-discovery is no different.
Ask yourself, “What challenge are we trying to overcome?” Your software needs to deliver results that address that business need. Go beyond how e-discovery software could make your life easier. Take a step back and look at the bigger picture that leadership cares most about.
Cost
The high costs of outsourcing all e-discovery activities can weigh heavily on legal departments. Even bringing part of the process in-house, like legal hold management, can make a substantial impact on a departmental budget. Jones recalls, “The costs were outrageous constantly using outside firms.”
Efficiency
Bringing e-discovery in-house will increase your ability to manage it. Alayne Russom saw problems in communications and process. “There was a disconnect over who was doing what and when. There was a disconnect over where information was located and what had been sent to outside counsel. Custodians were confused as to who they should contact for each of their legal holds.”
Managing Risk
Repeatable, documented processes for e-discovery reduce the risk of sanctions or negative case rulings, but risk arguments are more nuanced and less about big landmark sanctions rulings. Tom Mullane explains, “While the risks are still there, it’s harder to find compelling anecdotal data on sanctions danger. Additionally, changes to the FRCP have endorsed proportional approaches to preservation, and cybersecurity and privacy concerns have taken much of the focus.”
2. What does my e-discovery process look like?
Before you can choose the right technology platform to support your e-discovery process, you must understand what your process is. Some processes are formal and well-documented, while others exist as institutional knowledge. Whether your process is formal or informal (or somewhere in between), map it before you evaluate e-discovery software solutions.
Interview Stakeholders
Find out about your current process by talking to the people who use it every day: attorneys, paralegals, custodians, IT personnel, and even outside counsel. Alayne Russom advises asking your colleagues, “What is working well, and what’s not working well? What should e-discovery look like for you?”
Compile Documents
Even if you don’t have defined standard operating procedures for e-discovery, chances are you have some basic steps that your team follows every time. Collect informal documentation—training presentations, cheat sheets, even emails explaining how to perform tasks. “Even if you have a very loose process,” Tom Mullane says, “you’ll probably find more documentation than you think you have.”
Whiteboarding
Take a day, lock yourself and key colleagues in a meeting room, and draw out the process from beginning to end on a whiteboard. Start at the very beginning, from receipt of a complaint or legal notice, through the very end. Tara Jones explains, “The whiteboard process allows you to visualize where you need the most help, and it also outlines the pieces of your process that are fine. It helps identify what’s working and what’s not.”
3. Who needs to be involved in the decision to buy?
E-discovery projects often start from the bottom up, with paralegals and IT admins. They’re the ones facing tight deadlines, tracking legal holds on spreadsheets, and solving the problems of collecting from multiple data sources.
But you need higher level buy-in before you can make a big purchase like e-discovery software. Failing to include all the key stakeholders can stop your e-discovery software purchase dead in its tracks.
Key Gatekeepers for E-Discovery Software Purchases
These parties either need to approve, implement, or use your solution. If they’re not involved early, they could slow down or even derail the whole project. Your organization may have additional stakeholders as well, depending on its structure, but these functions are a good place to start:
- Legal department leadership
- Procurement
- Security
- Privacy and compliance
- IT
- Outside counsel
Build a Project Team
You’ll also need a core project team to make recommendations and ultimately for implementation. Alayne remembers, “We assembled a project leadership team, which consisted of myself, the project manager, an IT lead, and someone from our procurement area. Then we added people along the way as necessary.”
4. How should you choose between different software companies and products?
When you’re defining requirements for your e-discovery technology solution, it’s natural to consider the software first. What features does it have? What can you expect for cost and time savings relative to cost? As much as the technology, though, you need to evaluate the software provider.
Evaluating Software Providers
Implementation can be a long process, and you’ll have to work closely with your partner throughout. “One of the things I do is I’ll say before you even tell me about your company, let me first tell you a little bit about our company and how we do what we’re doing,” Mullane offers. “Then you can tell us where you think you fit into that and where you’re going to add value.”
Look at outside sources to validate potential partners. “Look for a company with a great reputation, both in product and in customer service,” advises Alayne Russom. “Look at independent research. Get references.”
Must-Have E-Discovery Software Features
No matter what type of software you’re considering purchasing, there are key features that any e-discovery solution should offer:
- Role-based access: It helps streamline workflows by allowing users to focus on what they need to do.
- Auditing capabilities: Your software should follow and document a defensible process, so you can prove it in court, if necessary.
- Customizable workflows: The software should support your process, not replace it. This will help you manage the change to a new platform.
Remember, you’re not trying to find the best software platform—just the one that is best for your company.
5. What software integrations does your e-discovery platform need?
Your e-discovery software solution must play well with your existing technology infrastructure (in-house data sources, cloud storage solutions, mobile phones, etc.) and with your vendors’ systems, as well. The best software in the world won’t save you time and money if it isn’t integrated with these systems.
The benefits of seamless integrations span the entire EDRM. Alayne Russom advises, “When thinking about collections, ask if your e-discovery software will integrate with your data sources. When thinking about review, consider if you’re going to be reviewing in-house or outsourcing. If you’re outsourcing, can your vendor use your software? For production, can the e-discovery software package up your data in a format that the receiver can use?”
At minimum, your e-discovery solution should be integrated with:
- Data sources
- E-Discovery software point tools
- Office 365 and archive platforms
- Matter management software
- Human resources software
6. How should you make the business case for purchasing e-discovery software?
At the end of the day, the investment of time and energy identifying the best e-discovery software platform for your needs is only useful if you’re able to procure and deploy it. And that depends on your ability to make a compelling business case for purchasing it.
Numbers Talk
Any compelling business case starts with return on investment, so get the numbers. “I pulled three years of e-discovery costs and combined that with the cost of the full-time employees and compared that to the cost of the e-discovery tool. So, I was able to defend our case based on the cost analysis right at the very beginning. That’s the key place to start,” recalls Tara Jones.
Leverage Ongoing Projects
For Tom Mullane, though, situational awareness really helped seal the deal. “If your company gets hit with a large second request or a government investigation, that’s a good time to get in and go, ‘You know what? We could really use some better tools to handle this.
Paint a Picture of the Future
But don’t just focus on past problems. Look to the future. Alayne Russom recalls, “The proposal included a timeline for implementing the new process and the cost of the software. You also need to point out the risks of doing nothing. If you don’t do anything, what’s going to happen? That’s ultimately what got everyone on board for us.”
Conclusions
More legal departments are bringing more activities in-house than ever before to control costs, gain transparency, and increase efficiency. With ballooning data volumes and high costs for external service providers, e-discovery is a prime target.
But to make the move to in-house e-discovery operations a success, legal departments must undertake a thorough analysis of their needs and the available technology solutions to find the one best suited to their e-discovery process. A successful process will follow these steps:
- Identify your need.
- Map your process.
- Engage key stakeholders.
- Define your requirements.
- Integrate with existing systems.
- Make the business case.
