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Working Successfully with eDiscovery and Litigation Support Service Providers: Preparing an eDiscovery Processing RFP
 

Last week, we covered preparing a RFP for eDiscovery Collection and Forensics.  This week’s RFP discussion will focus on processing eDiscovery, and today we’ll cover the information you should provide to a vendor regarding your collection and your requirements.  Remember, the more thorough you are, the better the vendor will be able to gauge the scope and complexity of your project.

Here’s information the vendor will need to give you accurate cost and schedule information:

  1. An estimate of the volume.  That is, the number of gigabytes or terabytes of data to be processed.
  2. A description of the data files you expect will be found in the collection (for example, Word documents, Excel documents, PST files, and so on).
  3. A description of the deliverable you’ll be providing to the service provider (the media on which the data will be provided, whether you’ll be uploading data to the service provider’s server) and a schedule for data delivery.
  4. Will de-duplication be required, and if so, by case or by custodian?
  5. What filtering will be required?  Let the service provider know if you’ll be providing keywords, date ranges, and other criteria for filtering.
  6. Are any files password protected, and if so, how should the vendor handle those?  Should they try to crack the passwords?
  7. If you are requiring images, are endorsements required?  If so, what endorsements? Bates numbers? Text, such as confidential or other stamps?
  8. Describe the deliverables you will require from the service provider, including data file formats, image file formats (single-page TIFF, multi-page TIFF, PDF), searchable text, load file fields, etc.  Let the service provider know the target review tool you expect to use.
  9. The date by when the work must be completed, and if there will be processing priorities and interim deadlines.
  10. Describe your expectations regarding the need for the service provider to testify.

Armed with this information, a good vendor should be able to provide accurate cost and schedule information for processing your collection.  In the next post, we’ll cover RFP questions for processing and conversion services.

What type of information do you provide to a vendor in an RFP for processing eDiscovery?  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: Preparing a Collection & Forensics RFP, Part 2
 

Yesterday, we talked about the information you should include in a request for proposal for eDiscovery Collection and Forensics services.  Of course, that’s only half the picture.  To determine if a vendor is a good choice, you’ll also need to ask questions about the vendor’s offerings and experience and ask them for information about their operations. 

Of course, you’ll ask for pricing information and if the vendor can meet your schedule requirements.  In addition, here are questions to ask and information to request:

  1. Describe the qualifications, certifications, licensing, training and experience of your eDiscovery professionals.
  2. What collection tools do you use?  Describe the circumstances under which you use each tool.
  3. Describe the information that is tracked on chain of custody records.  Please provide a sample chain of custody form.
  4. Describe your approach to preparing a data collection plan.  What types of people in our organization will you require information/participation from?  What type of information will you need?
  5. Describe the searching/filtering audit history logs you maintain.
  6. Please provide at least three references.  We’re interested in speaking with clients who had requirements similar to ours.
  7. We may need you to provide testimony.  How often have you provided testimony?  Please describe the testimony you’ve provided.  Can we meet and interview the professional who will be doing our work and who may need to provide testimony?

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.

What questions to you ask and what information do you request in an RFP for collection and forensics?  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: Intro to Preparing RFPs
 

In the past several weeks, we’ve talked a lot about working with service providers.  We’ve covered what to look for when you’re evaluating vendors, how to select vendors, how to monitor vendor work and prevent problems, and how to establish and manage a preferred vendor program in a law firm. 

In the next few posts (which will conclude this vendor series), I will give you some very concrete information that will help you to generate good requests for proposals (RFPs).  A good RFP has two essential elements:

  1. Information that you provide about the case, your requirements and your expectations.  A vendor can’t provide you with good schedule and cost information if you haven’t provided good information to the vendor.
  2. Information that you request of the vendor.  You’ll have lots of questions about the vendor’s services, capabilities, flexibility, capacity, qualifications and costs.

We’re going to look at several electronic discovery services – for example, ESI processing, and ESI hosting – and we’ll walk through the information pieces that are important.  For each service, I’ll make suggestions for the information that you should provide, and I’ll make suggestions for the questions that you should ask. When the blog series is complete, you should have a good resource of information points and questions to include in your RFPs.

What type of information do you provide to a vendor in a RFP?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore
 

A few months ago at LegalTech New York, I conducted a thought leader interview with Tom O’Connor of Gulf Coast Legal Technology Center, who didn’t exactly mince words when talking about the trend for attorneys to “finally tak[e] technology seriously”.  As he noted, “lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.” 

Strong words, indeed.  The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter.  Specifically, Model Rule 1.1 states that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

Preparation not only means understanding a specific area of the law (for example, antitrust or patent law, both highly specialized.).  It also means having the technical knowledge and skills necessary to serve the client in the area of discovery.

The ethical responsibilities of counsel these days includes competently directing and managing the identification, preservation, collection, processing, analysis, review and production of electronically stored information (ESI) required to be produced pursuant to lawful discovery requests.  If counsel does not have that level of competency in a particular area, he or she is obligated to either acquire the knowledge or skill necessary to support those needs, or include someone else who does have the requisite skills as part of the representation.

Not too long ago, I met with an attorney and discussed how they handled preservation obligations with their clients.  The attorney indicated that he expected his clients to self-manage their own preservation and collection.  When I asked him why he didn’t try to get more involved to make sure it was being handled properly, he said, “I don’t want to alarm them.  They might decide they need a bigger firm.”

Recent case law is full of cases where counsel didn’t fully understand their eDiscovery obligations, and got themselves and their clients “burned” in the process.  If your organization gets involved in litigation, make sure to include eDiscovery competence among the factors you consider when determining counsel qualifications to represent you.

So, what do you think?  Is your counsel eDiscovery savvy?  If not, do they use a provider that is?  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: Keeping a Preferred Vendor Program Up to Date, Part 2
 

Last week, we began talking about keeping a preferred vendor program up to date, and we covered establishing criteria to evaluate vendors after every project.  Here are the remaining steps in establishing a mechanism for keeping your preferred vendor program fresh and up to date:

2. Establish a mechanism for collecting evaluations from end-users on each project.  Once you’ve got a list of evaluation criteria for each service, you need to establish a mechanism for collecting evaluations from end-users after each project.  You might, for example, develop an electronic survey.  If you don’t think the attorneys and paralegals in your firm would fill that out, maybe in-person interviews after each project will be better.  Figure out what will work best in your firm and establish the process.

3. Establish a mechanism for compiling and analyzing the information collected in the surveys, and for ranking a vendor’s performance.  Build a database of the evaluation information you collect, and develop a ranking system so it’s easy to compare vendors, at a glance. 

4. Identify a Manager for the preferred vendor program.  Someone – probably in the firm’s litigation support department – needs to be responsible for monitoring the program.  The manager’s responsibilities may include:

  • Ensuring that end-of-project evaluations are done and that information is entered into the evaluation database.
  • Maintaining the evaluation database.
  • Providing feedback to vendors on performance evaluations.
  • Identifying vendors that – based on performance – should be removed from the preferred vendor list.
  • Communicating with vendors on administration issues (for example, on contracts and invoicing policies)

5. Periodically re-assess the program:  the last component of a preferred vendor program is a plan for “redoing” it every year or 18 months.  To really keep the program up to-date, it should be reviewed in it’s entirely on a set schedule.  Are their new services that should be added to the list?  Are there new vendors that should be looked at and evaluated?  Are there vendors on your list that may be meeting the bare requirements, but not the best of the lot?  Should they be removed?  Look at the program — in its entirety – with a fresh eye to ensure it’s doing what you need it to do and that it’s as good as it can be.

Have you developed a preferred vendor program?  How did you do it?  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: Keeping a Preferred Vendor Program Up to Date
 

In the last several posts in this series, we talked about evaluating and selecting vendors for a preferred vendor program.  Once that’s done, you still have a bit of work to do before rolling out your program.  You need to establish a mechanism for on-going evaluation of the vendors on your list.  This is an important component of the program – you need to monitor the work of the vendors on your list to ensure that they continue to meet your requirements and live up to your expectations.  Here’s the first step in developing this part of the program:

1. Determine evaluation criteria for each service.  The first step in developing a preferred vendor program was to create a list of the services that you’d like vendors to provide.  Go back to that list, and for each service, identify evaluation criteria that you can apply to every project moving forward.  There are some general criteria points that will probably apply to all services.  Some examples are: 

  • Were our deadlines met?
  • Were costs what we expected?
  • Were quality expectations met?
  • Was the vendor easy to work with?
  • Was the vendor responsive?
  • If applicable, did we receive timely status reports with useful information?
  • Were invoices timely and accurate?

For each service, there are likely to be specific questions.  Some examples are: 

  • For electronic discovery processing services: were load files formatted correctly?
  • For coding services: were coding rules applied consistently?
  • For electronic discovery processing services:  were changes in priorities in processing implemented smoothly?
  • For OCR services:  was OCR quality sufficient?
  • For use of online review tools:  was searching easy?  Did the tool offer all the search features we needed? 

Your goal is to compile a list – for each service – of easy-to-answer questions that will let you know if the vendor performed well on a project

Next week, we’ll go over the remaining steps in establishing a mechanism for keeping your preferred vendor program up to date.

Do you evaluate vendor performance after each project?  How do you do it?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: The Only Prescription is More Cloud
 

A famous “philosopher” once said, “I got a fever, and the only prescription is more cowbell”.  Sorry, I couldn’t resist…that line always makes me laugh.  😉

It seems that many corporations and law firms “got a fever” and “the only prescription is more cloud”.

As we noted earlier this week, Forrester has forecast that the global Software-as-a-Service (SaaS) “cloud” computing market will grow from 40.7 billion dollars in 2011 to more than 241 billion dollars by 2020 – a six-fold increase.  In addition, the Gartner Group has projected that the cloud computing industry will have revenue of 148.8 billion dollars by 2014 – an even faster growth rate than Forrester’s forecast of 118.7 billion dollars for the same year.

So, there are the predictions.  The question is why?

One reason is the continued trend toward decentralization and globalization of organizations today.  In my recent interview with Jeffrey Brandt, Editor of the Pinhawk Law Technology Daily Digest, he noted that a 250 lawyer firm in Ohio was the 83rd largest law firm in the country several years ago, but now that same sized firm might not make it into the AMLAW 250.  Firms are growing and, as technology shrinks the world for many organizations, the barriers to expansion (even globally) are minimized.  Cloud computing technology is one of the ways in which technology shrinks the world today and enables decentralized organizations share applications and data.

And then, there is the economy.

In the past few years, many corporations and law firms have reduced their IT staffs – in some cases, significantly. Also, while the use of technology has continued to increase “by leaps and bounds”, expenditures for training or upgrading skill sets has lagged behind. Cloud computing technology solves this issue because the burden of keeping up with technology advances is shifted from the organization to the service provider.  As a result, many organizations are finding that “the only prescription for their fever” is “more cloud”.

In the coming days, we will discuss other cloud benefits as well as issues to consider and address before making the move to the cloud.

So, what do you think?  Is your organization storing more data in the cloud?  Does your organization have an effective plan in place for getting to the data when litigation strikes?  Please share any comments you might have or if you’d like to know more about a particular topic.

As we are off on Monday for the Memorial Day holiday, eDiscoveryDaily would like to thank all veterans and the men and women serving in our armed forces and the sacrifices you make for our country.  Thanks to all of you and your families and have a happy and safe Memorial Day!

Working Successfully with eDiscovery and Litigation Support Service Providers: Establishing a Preferred Vendor Program, Part 2
 

Yesterday, we covered the first couple of steps in establishing a law firm preferred vendor program.  Here are the next steps in the process:

3. Review the vendors with which the firm has worked in the past year.  Make a list of the vendors with which the firm has recent experience.  For each, answer these questions:

  • What services were provided?
  • How much work did the vendor do for the firm?
  • Were deadlines met?
  • Did the vendor provide high-quality work?
  • Were costs reasonable and within expectations?
  • Was the vendor easy to work with?
  • Are there thresholds that if exceeded, the vendor might not be a good candidate (for example, high volume or quick turnaround projects)?

The vendors that pass muster in this initial review can be the starting point of your preferred vendor list.

4. Classify vendors by service.  So far, you’ve created two lists:  a list of the services you need provided, and a list of the vendors that have done good work for the firm.  Combine those lists.  Under each service, list the vendors that provide that service.  Make qualifying notes regarding thresholds, if applicable.

5. Evaluate additional vendors.  Fill in the holes on your list, if that’s necessary.  For each service, you should have multiple vendors.  If you need to add to your list, do some research and vendor evaluations.  Even if your lists are complete, it’s always a good idea to find out if there are other vendors you should be considering.  Talk to peers in the industry and do a little research to make sure you are not overlooking good candidates.

6. Finalize the list and negotiate “relationships”.  When your list is filled in, make sure you’ve met with each vendor and that you’ve clearly laid out the firm’s expectations and come to agreement on how you’ll work with the vendor.  This may involve negotiating standard pricing, standard deliverables, project start-up procedures, and communication protocols.

Next week we’ll focus on establishing the next component of a preferred vendor program:  establishing mechanisms for doing on-going evaluations of the vendors on your list.

Have you developed a preferred vendor program for your firm?  How did you do it?  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: Establishing a Preferred Vendor Program
 

Last week, we talked about the components of a preferred vendor program.  Establishing a program is a “project”, and should be approached with a solid plan of action.  First, identify who will put the program together.  The team should be made up of experienced litigation support professionals and it should incorporate input from litigation team members.  Once the team is in place, you need a step-by-step approach for moving forward.

In the next few posts in this blog series, I’ll suggest an approach.  Here are the first couple of steps:

1. Create a list of the services to be provided by vendors.  You may need vendors to provide a variety of services – services that the firm’s litigation support department does not provide, and services for projects that exceed the capacity of the firm’s litigation support department offerings.  Your list may look something like this:

  • ESI collection
  • ESI processing
  • Tiffing
  • Photocopying and scanning
  • Coding / auto-coding
  • Hosting and providing online review platforms
  • Language translation
  • Document review staffing and management
  • Court reporting / deposition transcription
  • Trial support services 

2. Get input from litigation team members on preferences and priorities.  Survey attorneys and paralegals in the firm to determine what is most important to them.  For each service on the list, ask questions about pricing expectations, overall schedule requirements, and expectations on deliverables.  Ask them if they’ve worked with vendors that should be considered.  This is an important step.  First, it ensures that your evaluation process will take into account what’s most important to the users.  Second, litigation department members are more likely to embrace a program that they participated in developing.

We’ll continue with the next steps tomorrow.

Have you developed a preferred vendor program for your firm?  How did you do it?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Forecast for More Clouds
 

No, eDiscoveryDaily has not begun providing weather forecasts on our site.  Or stock forecasts.

But, imagine if you could invest in an industry that could nearly sextuple in nine years? (i.e., multiply six-fold).

Well, the cloud computing, or Software-as-a-Service (SaaS), industry may be just the industry for you.  According to a Forrester report from last month, the global cloud computing market will grow from 40.7 billion dollars in 2011 to more than 241 billion dollars by 2020.  That’s a 200 billion dollar increase in nine years.  That’s enough to put anybody “on cloud nine”!

The report titled Sizing The Cloud by Stefan Ried (Principal Analyst, Forrester) and Holger Kisker (Sr. Analyst, Forrester), outlines the different market dynamics for three core layers of cloud computing, as follows:

  • Public Cloud: From 25.5 billion dollars to 159.3 billion dollars by 2020;
  • Virtual Private Cloud: From 7.5 billion dollars to 66.4 billion dollars by 2020;
  • Private Cloud: From 7.8 billion dollars to 159.3 billion dollars by 2020.

Public cloud providers include everything from Facebook and Twitter to Amazon.com and Salesforce.com.  As the name implies, a private cloud is where companies implement their own cloud environment to support its own needs.  A virtual private cloud is simply a private cloud located within a public cloud.

Forrester is not the only analyst firm that expects big things for cloud computing.  The Gartner Group projected that the cloud computing industry will have revenue of 148.8 billion dollars by 2014, even higher than Forrester’s forecast of 118.7 billion dollars for the same year.  Clearly, the benefits of the cloud are causing many organizations to consider it as a viable option for storing and managing critical data.

What does that mean from an eDiscovery perspective?  That means a forecast for more clouds.  If your organization doesn’t have a plan in place for managing, identifying, preserving and collecting data from its cloud solutions, things could get stormy!

So, what do you think?  Is your organization storing more data in the cloud?  Does your organization have an effective plan in place for getting to the data when litigation strikes?  Please share any comments you might have or if you’d like to know more about a particular topic.