Close
Enter your
text here

Electronic Discovery

eDiscovery Trends: Wednesday LTWC Sessions
 

As noted yesterday, LegalTech West Coast 2011 (LTWC) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Los Angeles area with a number of sessions (both paid and free) available and over 70 exhibitors providing information on their products and services, including (shameless plug warning!) my company, Trial Solutions, which is previewing a redesigned version 10 release of our linear review application, OnDemand®, prior to release this Saturday.

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 27 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

E-Discovery and the Cloud

Tom O'Connor, Director, Gulf Coast Legal Technology Center (and previous interviewee on this blog!) will discuss the following:

  • We've all heard of the cloud but are you sure you know what it means? A brief overview
  • New challenges created by the cloud
  • Impact of cloud storage on searchable documents: availability and costs
  • Reasonable discovery practices
  • The basic technical challenges for collecting, reviewing and producing relevant data from the cloud
  • Recent case law
  • Best practices for managing the cloud

Risk & Responsibility vs. Cost Control: Managing E-discovery's Great Balancing Act

Bill Speros, Attorney Consulting in Evidence Management, Speros & Associates LLC will discuss the following:

  • Framing the legal issues–identifying risks and responsibilities for companies and their counsel
  • Negotiations with opposing counsel
  • Custodian selection
  • Data selection
  • Culling options
  • Screen and produce
  • Automated review

2:00 – 3:15 PM:

Social Media and E-Discovery

Joshua A. Engel, Vice President and General Counsel, Lycurgus Group will discuss the following:

  • New challenges created by social media
  • New challenges created by the cloud
  • Impact of cloud storage on searchable documents: availability and costs
  • Reasonable discovery practices
  • Privacy concerns
  • Best practices for social media

Top 5 Ethical Concerns for Lawyers in E-discovery

Brett Burney, Burney Consultants LLC will discuss the following:

  • Appropriately supervise clients' discovery efforts (including potential conflicts around self collection)
  • Avoid conflicts of interest – attorney's and vendor's
  • Appropriately supervise document reviewers
  • Avoid serving as discovery process 30(b)(6) witness
  • Accurately represent clients' data storage paradigm and retrieval/restoration/review expenses

3:45 – 5:00 PM:

Share Point and E-Discovery

Beau Mersereau, Director of Applications, Development and Support, Fish & Richardson, P.C. will discuss the following:

  • An overview of share point and what it means to the legal industry
  • Impact on corporate record keeping
  • More data = more searchable material = higher costs
  • New challenges posed by share point
  • Best practices

The 5 Most Important Things you Need to Consider when Bringing e-Discovery In-house

You have made the decision to in-source certain aspects of the e-Discovery process, or you're considering the potential benefits, but the next step is a challenge. In this session, we will address the five most important things to consider as you take on the responsibilities and risks of e-Discovery internally. We will look through the lenses of both legal and IT, and discuss how best to support the technology and business processes. We also evaluate sourcing models to address the risks. This is an ideal panel for corporate legal departments to attend along with their IT department leaders.

Panelists are: Karen LaFleur, Director of Information Technology and Practice Support, BuchalterNemer, A Professional Corporation; Brett Burney, Burney Consultants LLC; and Lisa K. Clements, Litigation Support Manager, DLA Piper LLP (US).

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Welcome to LegalTech West Coast 2011!
 

Today is the start of LegalTech® West Coast 2011 (LTWC) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next two days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the Los Angeles area, come check out the show – there are a number of sessions (both paid and free) available and over 70 exhibitors providing information on their products and services, including (shameless plug warning!) my company, Trial Solutions, which is previewing a redesigned version 10 release of our linear review application, OnDemand®, prior to release this Saturday.

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 22 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

eDiscovery in Action: Reducing the Pain and Increasing the Results

Discusses practices to:

  • Increase defensibility, accountability and transparency across your organization
  • Improve efficiency and reduce the volume of growing, uncontrolled information
  • Reduce eDiscovery costs
  • Maximize the return on your technology investments and improve staff productivity
  • Adopt best practices and automate eDiscovery capabilities

Panelists are: Karen LaFleur, Director of Information Technology and Practice Support, BuchalterNemer, A Professional Corporation; Tom O'Connor, Director, Gulf Coast Legal Technology Center (and previous interviewee on this blog!); and Lisa K. Clements, Litigation Support Manager, DLA Piper LLP (US).

Records Policies, Technology and Processes that Optimize Corporate Compliance and Discovery

Topics discussed include:

  • Discover how to maximize efficiency by managing data in a manner that anticipates requests for ESI
  • Learn tips on how to create, implement and monitor sound and defensible legal hold protocol
  • Analyze how significant cost-savings may be achieved through defensible, repeatable execution of that protocol

Panelists are: Wayne Wong, Managing Consultant, Kroll Ontrack; David Yerich, UnitedHealth Group; Ron Best, Director of Legal Information Systems, Munger Tolles & Olson.  Moderator: Dave Schultz, Manager, Legal Technologies, Kroll Ontrack.

2:00 – 3:15 PM:

Exploring Enterprise Search Technology

Covers how to:

  • Understand the totality of electronic information: documents, websites, emails, tweets, audio and video
  • Automate complex information-centric processes by understanding the meaning of electronically stored information
  • Empower organizations to better address their legal, regulatory and business obligations through evolutionary search technology

Panelists are: Ali Shahidi, Director of Knowledge Management, Bingham McCutchen LLP; Scott A. Preston, Chief Information Officer, Fulbright & Jaworski L.L.P.

Social Media and Discovery: Tales, Trials and Technology

Panelists will:

  • Discuss the impact of social media and the cloud on discovery
  • Hear important questions and implications that must be fully understood before implementing use policies around social media and entrusting data to the cloud
  • Explore data collection, data security, and privacy with regard to social media and the cloud

Panelists are: Wayne Wong, Managing Consultant, Kroll Ontrack; Bianca Dickerson-Willams, CRM, Kroll Ontrack; Jeff Fowler, Counsel, O'Melveny & Myers.  Moderator: Dave Schultz, Manager, Legal Technologies, Kroll Ontrack.

3:45 – 5:00 PM:

Partnering for Success: Inside and Outside Counsel Working Together

Discussion regarding:

  • Linking together inside and outside counsel
  • Improve the early case assessment process Leverage review methods including conceptual search and meaning-based, computer-assisted tagging and coding to reduce cost of review
  • Streamline and simplify the process on a single platform to better comply with the FRCP and help inside and outside counsel avoid sanctions

Panelists are: Jeffrey W. McKenna, Esq., Former Senior Associate, Skadden, Arps, Slate, Meagher & Flom, LLP; Member of the International Association of Privacy Professionals (IAPP); Thérèse P. Miller, Of Counsel, Shook Hardy & Bacon LLP; Bill Speros, Attorney Consulting in Evidence Management, Speros & Associates LLC.

Next Decade of Document Review: Cheaper, Better, Smarter

Topics include:

  • Consider how document review practices have evolved in the past decade
  • Learn how to stop wasting valuable corporate dollars on chaotic document review by utilizing Intelligent Review Technology (IRT), which can reduce the burden and expense of analysis, review and production
  • Discuss cutting-edge cases that highlight the importance of using technology to conduct faster and cheaper discovery

Panelists are: Andrea Marshall, Consultant, Kroll Ontrack; Ron Best, Director of Legal Information Systems, Munger Tolles & Olson; Jeff Fowler, Counsel, O'Melveny & Myers.  Moderator: Dave Schultz, Manager, Legal Technologies, Kroll Ontrack.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTWC (this time I mean it!), so feel free to check out our updates at twitter.com/TrialSolutions.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Usefulness of Facebook’s Self Collection Mechanism
 

We’ve written about Facebook a lot on this blog.  Shortly after this blog was launched, we provided information on Facebook’s subpoena policy.  We’ve also talked about the eDiscovery implications associated with the rollout of Facebook’s new email messaging system, dubbed “Facemail”.  And, just last week, we chronicled a case involving Facebook where they were ordered to produce documents instead of just merely providing access to them.  And, we haven’t even mentioned the latest revelations that Facebook may have secretly hired a PR firm to plant negative stories about Google (oops, we just did!).

But perhaps our most popular post regarding Facebook was regarding the self collection mechanism that they rolled out last October, which we found out about via our LegalTech interview with Craig Ball published back in March after our February interview (Craig also wrote an article about the feature in Law Technology News in February).

Now, another article has been written about the usefulness of Facebook’s self collection mechanism (called “Download Your Information”) in the blog E-Discovery Law Alert, entitled How Useful is Facebook's "Download Your Information" Feature in E-Discovery?, written by Patrick V. DiDomenico.

The author of this article conducted a test by downloading his information via the utility, deleting some information from his Facebook profile – “an email message, some wall posts, comments, photos, and even a friend (not a close friend)” – hopefully, he added the friend back.  Then, he downloaded his information again, every day for four days, with no change for the first three days.  On the fourth day, most of the deleted information disappeared from the download, except the email message (which disappeared when he ran the utility one more time).

The conclusion was that the mechanism “does not appear to ‘look back’ and recover deleted information in the user’s account”.  Thoughts:

  • With no change in the download in the first three days, the author notes that “Facebook did not take a fresh snapshot of my account every day – it just re-downloaded the same file three days in a row”.  He doesn’t mention whether he added any content during this time.  It would be interesting to see if that would force a change.
  • I don’t believe that there is any specific documentation from Facebook as to how it handles additions and deletions and how often the snapshot is updated.  If not, it might behoove them to create some, it might save them some subpoena requests.
  • The author notes that “it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information” as it “gives no assurance that a litigant’s attempt to delete evidence will be revealed”.  On the other hand, it may be still an appropriate mechanism to use for your own discovery to preserve your own information.  Facebook may also store deleted information on backup tapes, so a subpoena could catch your opponent red-handed if you can justify the discovery of those tapes.  Food for thought.

So, what do you think?  Have you had any Facebook discovery requests in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Quality Problems
 

In the past few posts in this series, we’ve discussed ways to minimize the possibility of problems with costs and meeting deadlines.  There are also steps you can take to increase the likelihood of high quality work that will meet your expectations. 

It starts when you are evaluating and selecting a vendor.  Based on your review of a vendor’s qualifications, procedures and technology, along with feedback you’ve received from references, make sure you select a vendor that is likely to do high quality work and that has a good track record. 

Once a project is underway, look at the vendor’s work to ensure it meets your expectations.  This is especially important with work that is labor-intensive.  In fact, there are three levels of quality control that you should be doing:

  1. A review of initial work done by each staff member:  As staff members finish initial batches of work, look at it right away and verify that it is correct.  This way, mistakes made because someone misunderstood instructions can be cleared up very quickly, before a lot of work is done that will need to be re-done.
  2. Ongoing QC of work throughout the project:  Even if everyone on the staff knows how to do the work, that doesn’t mean they will do it right all the time.  Mistakes are inevitable and work should be spot-checked throughout a project to ensure that errors are kept to a minimum.  It’s a good idea to have project staff dedicated to doing on-going quality control reviews.
  3. Random sampling done by senior litigation team members:  In addition to routine quality control done by project staff members, its always a good idea to ask senior members of the litigation team to periodically look at a sampling of the work, to ensure that stakeholder expectations are in sync with the work of the project staff.

What steps do you take to ensure high quality work from a vendor with which you are working?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Schedule Problems
 

Of all the problems you might have to report to an attorney, the worst may be that you are going to miss a production deadline.  Deadlines get missed because document or data collections are larger than expected, the task is more difficult than expected, sufficient technical resources aren’t allocated to the project, or the project simply isn’t staffed properly.  Good communication up front with a vendor, and good monitoring throughout a project can minimize the chance of missing deadlines. 

Here are some steps you can take to prevent deadline problems and keep a vendor on track with your schedule requirements:

  • During the vendor evaluation and selection process, get commitments from a vendor on scaling up to accommodate changes in volume.  Ask about their ability to add staff, technical resources, or second shifts to meet deadlines if things get off track.
  • Before signing a contract with a vendor, ask for a schedule that includes weekly estimates of completed work, and that includes expected staffing levels for labor-intensive work.
  • In addition, require that the vendor provide you with weekly status reports that include estimated weekly numbers, actual weekly numbers, estimated to-date numbers, actual to-date numbers, and variances.  This will enable you to see – each week – how the project is going and whether the schedule is slipping.  Carefully review status reports as they are received and speak to the vendor right away if things are getting off-track.  Be proactive in requesting additional resources if the project is getting off-schedule.
  • Require that the vendor notify you in writing – in advance – if a deadline will be missed.
  • When you communicate schedule information to a vendor, build in pad!  For example, give the vendor a deadline well in advance of a production date.
  • Stay in constant communication with the litigation team about discovery issues.  The more notice that you have about additional documents or data, the more notice you can give to the vendor.

What steps do you take to prevent schedule problems with vendor work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Case Law: Written Litigation Hold Notice Not Required

The Pension Committee case was one of the most important cases of 2010 (or any year, for that matter).  So, perhaps it’s not surprising that it is starting to become frequently cited by those looking for sanction for failure to issue a written litigation hold.

In Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), (W.D.N.Y. Apr. 21, 2011), a U.S. District Court in the Western District of New York declined to follow the Pension Committee decision in the Southern District of New York to the extent that the Pension Committee decision held “that implementation of a written litigation hold notice is required in order to avoid an inference that relevant evidence has been presumptively destroyed by the party failing to implement such written litigation hold.”

Steuben Foods alleged that Country Gourmet breached its exclusive supply contract with Steuben when County Gourmet sold all its assets except the supply contract to Campbell Soup. Campbell sought sanctions against Steuben when several emails were not produced by Steuben and Steuben conceded that its litigation hold procedure had not included a written notice. Steuben’s corporate counsel had orally directed each of eight managers and corporate officers to identify all electronically stored information, including paper documents and email communications, pertaining to Country Gourmet or Campbell and not to discard or delete or otherwise destroy such documents pending the litigation.

Campbell pointed to the Pension Committee decision, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456, 476 (S.D.N.Y. 2010), “in which the court found that the absence of a written litigation hold notice supported its conclusion that plaintiffs had been grossly negligent in their obligations to preserve relevant electronically stored documents and that plaintiffs’ document production failures, coupled with the absence of a timely written litigation hold, permitted the inference that relevant documents were culpably destroyed or lost as a result.”

The court declined to infer from the absence of a written litigation hold, as the Pension Committee court did, that relevant documents were culpably destroyed or lost:

“Accordingly, the court in this case declines to hold that implementation of a written litigation hold notice is required in order to avoid an inference that relevant evidence has been presumptively destroyed by the party failing to implement such written litigation hold.”

The court noted that the relatively small size of Steuben with 400 employees “lends itself to a direct oral communication of the need to preserve documents relevant to Plaintiff’s case” and was a reason “why a written litigation hold is not essential to avoid potential sanctions for spoliation.” In any event, according to the court, Campbell was not prejudiced by any failure of Steuben to produce email because Country Gourmet provided copies of the email to Campbell and Campbell could show no prejudice resulting from any claimed negligence of Steuben in not having a written litigation hold.

So, what do you think?  Should a written litigation hold be required in every case?  Would that have made a difference in this one?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?
 

Does anybody really know what time it is?  Does anybody really care?

OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority).  But, the question of what time it really is has a significant effect on how eDiscovery is handled.

Time Zone: In many litigation cases, one of the issues that should be discussed and agreed upon is the time zone to apply to the produced files.  Why is it a big deal?  Let’s look at one example:

A multinational corporation has offices from coast to coast and potentially responsive emails are routinely sent between East Coast and West Coast offices.  If an email is sent from a party in the West Coast office at 10 PM on June 30, 2005 and is received by a party in the East Coast office at 1 AM on July 1, 2005, and the relevant date range is from July 1, 2005 thru December 31, 2006, then the choice of time zones will determine whether or not that email falls within the relevant date range.  The time zone is based on the workstation setting, so they could actually be in the same office when the email is sent (if someone is traveling).

Usually the choice is to either use a standard time zone for all files in the litigation – such as Greenwich Mean Time (GMT) or the time zone where the producing party is located – or to use the time zone associated with each custodian, which means that the time zone used will depend on where the data came from.  It’s important to determine the handling of time zones up front in cases where multiple time zones are involved to avoid potential disputes down the line.

Which Date to Use?: Each email and efile has one or more date and time stamps associated with it.  Emails have date/time sent, as well as date/time received.  Efiles have creation date/time, last modified date/time and even last printed date/time.  Efile creation dates do not necessarily reflect when a file was actually created; they indicate when a file came to exist on a particular storage medium, such as a hard drive. So, creation dates can reflect when a user or computer process created a file. However, they can also reflect the date and time that a file was copied to the storage medium – as a result, the creation date can be later than the last modified date.  It’s common to use date sent for Sent Items emails and date received for Inbox emails and to use last modified date for efiles.  But, there are exceptions, so again it’s important to agree up front as to which date to use.

So, what do you think?  Have you had any date disputes in your eDiscovery projects?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: What Are the Skeletons in Your ESI Closet?
 

At eDiscoveryDaily, we try not to re-post articles or blog posts from other sources.  We may reference them, but we usually try to add some commentary or analysis to provide a unique spin on the topic.  However, I read a post Thursday on one of the better legal blogs out there – Ride the Lightning from Sharon Nelson – that was a guest post by Jim McGann, VP of Information Discovery at Index Engines that I thought was well done and good information for our readers.  Jim has been interviewed by eDiscoveryDaily here and here and always has terrific insight on ESI issues.  You can click here to read the post directly on Ride the Lightning or simply read below.

Law firms and corporations alike tend to keep data storage devices well beyond what their compliance requirements or business needs actually dictate.  These so-called “skeletons in the closet” pose a major problem when the entity gets sued or subpoenaed. All that dusty data is suddenly potentially discoverable. Legal counsel can be proactive and initiate responsible handling of this legacy data by defining a new, defensible information governance process.

  1. Understand all data sources. The first choice when faced with an ESI collection is to look at current online network data. However, many other sources of email and files exist on corporate networks, sources that may be more defensible and even cost effective to collect from, including offsite storage typically residing on backup tapes. Tape as a collection source has been overlooked because it was historically difficult and expensive to collect from legacy backup tapes.
  2. Get proactive with legal requirements. Defining what ESI data should be kept and placed on litigation hold and what can be purged are the first steps in a proactive strategy. These legal requirements will allow clients to put a policy in place to save specific content, certain custodians and intellectual property so that it is identifiable and ready for on demand discovery.
  3. Understand technology limitations. Only use tools that index all the content, and don’t change any of the metadata. Some older search solutions compromise the indexing process, and this may come to haunt you in the end.
  4. Become a policy expert. As new technology comes on the market, it tends to improve and strengthen the discovery process. Taking the time to understand technology trends allows you to stay one step ahead of the game and create a current defensible collection process and apply policy to it.

So, what do you think?  Do you have “skeletons” in your ESI closet?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Facebook Did Not Deduce That They Must Produce

In this case, United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce ESI that was previously produced in a converted, non-searchable format and further ordered Facebook not to use a third-party vendor’s online production software to merely “provide access” to it.  The court’s order granting the plaintiff’s Motion To Compel Production in In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D.Cal. Apr. 6, 2011) addressed the importance of ESI Protocols, the requirement to produce ESI in native formats, and production of documents versus providing access to them.  A copy of the order can be found here.

Several plaintiffs brought a class action against Facebook for breach of contract and violation of California’s Unfair Competition Law, suing Facebook for allegedly misrepresenting the quality of its “click filters,” which are filters used to prevent charging merchants when advertisements are inadvertently clicked.  When discovery disputes occurred, plaintiffs filed their Motion To Compel, alleging:

  1. Facebook refused to agree to an ESI Protocol to establish the manner and form of electronic production, including agreement on search words or phrases, custodians and time frames for production,
  2. Facebook uploaded its responses to discovery requests to a commercial website (Watchdox.com) in a manner that seriously limited the plaintiffs’ ability to review them.  Documents on Watchdox.com could not be printed and Facebook, citing confidentiality concerns, retained the ability to cause documents to expire and no longer be accessible after a period of time.
  3. The documents loaded to Watchdox.com, as well as others that were actually produced, were not in their native format, and thus were unsearchable and unusable.  One such document was an 18,000 page customer complaint database printed to PDF which lacked any searchable features.

With regard to the refusal to agree to an ESI protocol, Facebook argued that such a protocol would result in “forcing the parties to anticipate and address all potential issues on the form of electronic production” and “would likely have the result of frustrating and slowing down the discovery process.” The court rejected this argument, noting “The argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all”.

In reviewing Facebook’s production protocol, the Court noted that “each of these steps make the discovery process less efficient without providing any real benefit.” and found that Facebook’s privacy concerns were unreasonable since a two tiered protective order already existed in the case as well as the fact that confidential documents could be marked as such to prevent inadvertent disclosures.  The Court held that Facebook’s use of Watchdox.com was unduly burdensome on the Plaintiffs and thus ordered Facebook to produce any documents that had been uploaded to Watchdox.com in their native searchable formats.  The Court also ordered Facebook to reproduce previously produced documents that were provided in an unsearchable format in their native searchable formats.

So, what do you think?  Is merely providing access to documents sufficient for production?  Please share any comments you might have or if you’d like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preventing Unexpected Costs
 

Unfortunately, it’s just not possible to know up-front precisely what a litigation support or eDiscovery project will cost.  There are too many unknowns, and, therefore, too many opportunities for surprises regarding costs.  You can, however, avoid some of those surprises with good upfront communication with the vendor.

Here are some steps you can take to prevent surprises and control costs:

  • Make sure that you have a clear understanding of every unit price the vendor provides to you in an estimate.  Some tasks may be charged per-page, others per-document, others per gigabyte, and others on an hourly basis.  Make sure that you understand how the work is being charged and that you agree that the price model makes sense.
  • Require that the service provider prepare an estimate of total project costs in addition to providing unit pricing.  That estimate should be based on a reasonable estimate of the size of the collection and on assumptions about the project that you provide to the vendor.  Ask the vendor to include all incidental cost components in the estimate.  For example, it the vendor charges for project management, supplies and shipping, require that the estimate include these costs based on their experience with similar projects.
  • Before signing a contract, come to agreement on how any changes in the assumptions will affect the price.
  • Review a sample invoice and make sure that you understand its components.  You may need to verify the vendor’s invoices, so make sure that they provide an invoice you understand.  Changing the format of an invoice may not be easy for a vendor, so it’s probably not reasonable to ask them to do so.  You could, however, ask for a cover letter with each invoice explaining charges that may not be clear or evident .  It’s always better to ask for these types of “extras” before signing a contract with a vendor.
  • Find out what the vendor’s policy is on price changes or notification of such.

These are easy steps that don’t take much time.  This extra effort up-front, however, can avoid surprises and disagreements down the road.

What steps do you take to prevent cost problems with vendor work?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.