Buying a New E-Discovery Platform?

Law firm e-discovery experts on the eight questions firms should ask themselves before investing in an e-discovery platform.

So you’re looking to get in line with the 21st century and undertake an initiative to upgrade your e-discovery software. That’s good; if your law firm isn’t using the best e-discovery software, then it is losing out on crucial efficiencies that mean higher costs and time wasted—a non-starter when it comes to litigation.

But what exactly does the best software mean? It doesn’t necessarily mean the most costly—many firms would be better served saving costs if they don’t have a need for the high-end e-discovery model. It doesn’t necessarily mean the fanciest gadgets—if your firm’s attorneys won’t use the high-end analytics, for example, why pay extra for them? It may not even be the most robust—can your firm’s hardware (i.e. desktops and laptops) even handle the software in question?

We reached out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on the eight questions firms should ask themselves before investing in an e-discovery platform.

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1. What do your attorneys actually use?

When researching a new system for use at Gibson Dunn, Evans said, “What we were most focused one was collecting information from our own attorneys.” This included not only which platforms his attorneys were actually using, but also how well they liked them. The method for collecting this information doesn’t need to be high-tech—Gibson Dunn used a SurveyMonkey poll—but it does have to be comprehensive in figuring out likes and dislikes.

And, Evans added, finding the reasons for those likes and dislikes is important too. He noted that in some situations that he encountered, an attorney vehemently disliked a certain platform... only to find that there was nothing wrong with the software itself, just with the vendor that delivered it.

2. How will people use the technology?

Once research is done into the platforms available and attorney likes and dislikes, it’s important to nail down how the attorneys are actually planning on using the platform. If attorneys would like greater insight into the data analytics and plan to spend time researching a case through the system, the firm should know that. Ditto if the attorneys prefer ease-of-use and would only use baseline functionality.

Rosenthal noted that while the capabilities touted by one e-discovery vendor may sound excellent, 60 percent of e-discovery costs are incurred through attorney time. As a result, efficiency should be the key driver. “Non-attorneys tend to focus on the pure e-discovery aspects, without focusing on the single most important part—how to use the technology to expedite the review, maintain quality and reduce costs,” Rosenthal said. “The non-attorneys, therefore, need to spend more time understanding the objectives of the case team and then help develop processes around the technology re achieve those objectives. Sounds simple—it is not.”

3. What are the platforms’ data analytics capabilities, and do we need them?

One of the increasingly common features of many e-discovery platforms is the use of data analytics—many vendors are touting the use of analytics as a great differentiator. And, in a perfect world, law firm technologists would love if every attorney in the firm learned how to utilize data analytics to leverage greater efficiencies in the discovery process. But we don’t live in a perfect world, and before paying for the latest and greatest data analytics, firms should align its own priorities with that of the platform.

As Evans said of the Gibson Dunn selection process, “Certain of us are power users and would have been into the high-powered analytics, but that would have been overkill.” Instead, he said, the firm went with a more basic platform, with the opportunity to use a more robust platform as needed for those more familiar with the technology or as a larger case demands.

Rosenthal added, “For overwhelming majority of reviews, the most sophisticated analytics such as predictive coding will not be used. It is important to consider other types of analytics that can be used in the average review such as key word listing and search term analytics; email analytics (URL, Domain, timing gaps): threading; near duping; and clustering. Each of these can be used on any review to reduce volume and increase efficiency.”

4. Can the firm’s preexisting technology handle the new platform?

You may have purchased the latest and greatest new e-discovery software, but if the firm’s Windows 2000-running laptops don’t have the processing power to handle it, that software investment just turned into an entire revamping of the firm’s IT department. As a result, Evans said that bringing the firm’s IT department into the process to help answer this question is crucial. They have the expertise to answer more definitively whether the platform’s specific specs are a good fit technologically with the firm’s hardware and other software. And not only will they be helping implement the technology in question, but they will also be the ones that many attorneys turn to if something with the platform goes wrong. Firm decision-makers, then, should include the time and effort of the IT department into their cost calculations.

5. Should I choose just one platform, or should I look at multiple to handle different parts of the process?

This one shouldn’t even be a question, Rosenthal said. It all comes back to the three keys of IT system success: people, process and technology. And without one of those legs of the tripod, a duplicable process in this case, e-discovery crumbles.

He explained, “No brainer—one platform—one process. Volume is the enemy. Only through using people, process and technology at each stage of the EDRM can you ultimately reduce the volume that is subject to review and, thus, the overall cost of the review. By using one platform with a consistent tool set you have the ability to develop work flows to develop a consistent, repeatable and defensible process for attacking the volume. If you are on a different tool set for each review, it is difficult to bring a consistent workflow and process to bear on the problem.”

6. What cost does the firm prefer, and what costs are actually present?

“Cost is a deceptive term when it comes to e-discovery platforms because there are components to cost that may not be obvious in the vendor’s proposal,” Rosenthal said. He noted that there are often external costs to operate the software, such as internal IT and project management resources will be required that might not be included in the basic cost of the hardware/software. Geographic considerations may also be a concern for firms that handle cases in a number of different jurisdictions.

He also added that it is “important to consider variable costs. For example, some vendors might charge by seat to a certain level with burst or penalty fees over that level. The choice is then paying the penalties or stepping up the next level, with the risk that you need to purchase to peak demand, with many licenses sitting on the shelf.”

7. How long is the contract for?

One consideration of the contract isn’t just the cost, but also the length, Evans explained. While many firms look only at costs, they may be locking themselves into a long-term deal without realizing it. This can go one of two ways—it creates a partnership between the vendor and firm which leads to more specialized service, or it locks the firm into a contract while technological advances happen all around them.

“Technology advances very quickly, and contracts change as well. There can be a real downside in being locked into a longer term contract,” Evans cautioned. He said that while Gibson Dunn has not completed the purchasing process for a few years, he has heard anecdotally that some vendors are beginning to push for longer term contracts. While this ask may not be a deal-breaker, it certainly should be an area that the firm brings up in negotiations and keeps an eye on come contract signing day.

8. Where will the data reside?

Finally, Evans noted that perhaps the most pressing question in today’s e-discovery environment is also one of the newer ones. With data security looming large on the radar of not only law firms but their clients as well, firms need to make some tough decisions as to whether they want to hold all of the data entering the platform behind their own firewall, or whether they would feel more comfortable using a platform’s cloud storage.

Most major vendors currently offer cloud solution, Evans noted, with the option to rent software and space. He said that in order to properly assess the firm’s capabilities, decision makers should engage a knowledgeable expert—either internally or externally if need be—to ask some key questions: “What will make more economic sense and data security sense? Is your data security robust enough to protect your clients’ data, or are you better off hosting it in the cloud with the security of a vendor?”

Credits: legaltechnews.com