Chapter § 1.06 e-Discovery

• Jurisdiction: United States
• Publication year: 2020

§ 1.06 e-Discovery

[1] Vendor Challenges

Electronic discovery (or e-discovery) often presents another challenge for corporate counsel.⁴⁸ Legal departments may find it difficult to find a good e-discovery vendor.⁴⁹ Companies with global operations have the added hardship of finding an e-discovery vendor that understands data privacy rules in other countries.⁵⁰ Oftentimes, multiple vendors are considered; however, the results can be hit-or-miss. Even asking law firms to use a specific e-discovery vendor may cause problems. The law firm may be unhappy with the vendor and use that discontent as a reason for raising costs. In-house counsel are faced with the awkward scenario of not knowing whether an issue lies with the law firm or with the vendor, ultimately wasting the company’s time and money.

Additionally, when an e-discovery vendor is hired, in-house counsel risk losing control of the process. Because the vendor works on the back-end, counsel may have difficulties finding where the vendor is moving various documents. Adding to the frustration, counsel feel the need to closely monitor the vendor’s performance and take an active part in the process of managing the litigation.

One of the ways of keeping control of the efficiency and quality of e-discovery when working with a vendor is to develop processes and procedures that can be monitored by counsel. Counsel should insist on participating in direct communications with the selected vendor and require frequent reporting on all aspects of the e-discovery project.

[2] Using Outside Counsel Vendors

From the outside counsel perspective, it can be ideal to work with e-discovery vendors that know the law firm’s system, which can ultimately benefit in-house counsel. Sometimes a standing relationship with a vendor allows the outside counsel to negotiate a lower price for in-house projects. Other times, in-house counsel prefer to develop their own relationships directly with outside vendors. In-house counsel may feel that outside counsel do not have the same incentive as in-house counsel to control costs, and that may come through on the bill. Consequently, in-house counsel often prefer to hire the vendor or have the firm handle the work directly, keeping control of the cost and the project in-house.

[3] In-House Tool

Some companies may choose to develop an in-house e-discovery tool. Litigation-savvy information technology professionals are capable of working on a solution involving a number of different platforms...