Editor's Note: The following article has been jointly contributed by Judd Lifschitz, co-president and the head of the Construction and Litigation & Trial Practice Groups at Shapiro, Lifschitz & Schram, P.C., and George D. Carry, an associate in the Construction and Litigation & Trial Practice Groups at Shapiro Lifschitz & Schram, P.C.
Discovery of electronically stored information (ESI) now is a standard part of commercial litigation and alternative dispute resolution. As a result, there has been a rapid and robust growth in the number of companies offering ESI collection, management and processing services. Although increased competition and consumer choice generally are positive for law firms and their clients, in-house counsel and executive decision-makers should recognize that this quick and recent boom in the e-vending industry also can result in a kind of “gold rush” factor, thereby flooding the industry with vendors that lack corporate training, experience, equipment and/or software to properly handle clients' data and the needs and demands of electronic discovery.
Recognizing and steering clear of these under- or unqualified vendors is a critical step in the e-vendor selection process. Before choosing an e-vendor for your discovery needs, you should engage in a structured due diligence effort to determine the right company for the specific case at hand. Some areas of inquiry to explore include:
1. The e-vendor's experience, track record and expertise.
- How long has the company been working with ESI? How experienced are its personnel?
- What cases has the e-vendor previously worked on?
- What law firms has the e-vendor worked with?
- What is the vendor's level of understanding of the litigation and discovery process?
- Are the employees certified or accredited in the tools or software being used?
- Does the vendor have legal professionals on staff?
2. The scope of the e-vendor's services.
- What services does the vendor offer? Do these services meet your particular needs in this case?
- What services, if any, does the vendor subcontract out to third parties?
- Who is the third party, and what are its credentials?
- Does data ever leave the vendor's site or system?
- How will the vendor price the project? Is the vendor's pricing structure appropriate for the particular needs of your case? Is the pricing structure competitive?
3. The technical specifications that support the e-vendor's services.
- Is the vendor using proprietary or off-the-shelf processing and review tools? If proprietary, what is the age of the product, and has it been reviewed?
- Does the vendor provide the technical assistance that you require in your specific case? (For example, does the vendor offer de-duplication, the generation of load files, smart searching, predictive coding or computer-assisted review, etc.?)
- What is the database and document review infrastructure?
- What software will the document review team require in order to search, review and manipulate the data?
- Does the vendor have experience with any unique or uncommon types of ESI that may be applicable in your present case (e.g., architectural rendering software files, construction schedule support files, accounting and time-keeping program files, medical or other specialized computer programs software files)?
4. The e-vendor's customer service.
- How are the cases managed and staffed?
- Can the vendor accommodate the level of work intensity that you require? Do you expect your team to be working 24/7, and, if so, can the vendor support that level of work intensity?
- How much lead time, if any, is required for collection, processing and production work?
- How available are the vendor representatives during off-hours?
- Will there be a primary point of contact person?
5. The e-vendor's quality of services.
- How does the vendor ensure speed and efficient performance?
- Does the vendor track mistakes and errors for future improvement?
- Is the vendor a thought leader in the industry?
- Is the vendor respected among other similar vendors?
In addition to making direct inquiries of all potential e-discovery vendors, your due diligence process also should include the collection and review of references. Call the vendor's prior clients and inquire about the vendor's responsiveness, turnaround time, pricing, the accuracy of the vendor's budgets and its project-management ability. It also is prudent to do a short Internet search for any articles that discuss the prospective vendor.
The time and costs associated with the discovery of ESI are an expensive and necessary reality in today's litigation culture. Attentive and cost-efficient management of the process from the harvesting stage through document review and the ultimate production of files is essential to effectively manage a litigation budget. This process begins with the careful selection of your e-discovery vendor.
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