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eDiscoveryDaily

eDiscovery Trends: More On the Recommind Patent Controversy
 

Perhaps the most controversial story discussed in the eDiscovery community in quite some time is the controversy regarding the patent recently announced by Recommind for Predictive Coding via press release entitled, Recommind Patents Predictive Coding, issued on June 8.  I haven’t seen this much backlash against a company or individual since last summer when LeBron James’ decision to leave the Cleveland Cavaliers for the Miami Heat (and the subsequent championship-like celebration that he and his teammates conducted before the season).  How did that turn out?  😉

Since that announcement, there have been several articles and blog posts about it, including:

  • This one, from Monica Bay of Law Technology News, asking the question: “Is Recommind Blowing Smoke?”  where discussed the buzz over Recommind’s announcement;
  • This one, from Evan Koblentz (also of Law Technology News), entitled “Recommend Intends to Flex Predictive Coding Muscles” which includes responses from Catalyst and Valora Technologies;
  • This one, also from Evan Koblentz, a blog post from EDD Update, where Recommind General Counsel and Vice President Craig Carpenter acknowledges that Recommind failed to obtain a trademark for the term Predictive Coding (though Recommind is still using the ™ symbol on the term Predictive Coding onthis page);
  • Three blog posts in four days from Sharon D. Nelson of Ride the Lightning blog, which debate the enforceability of the patent and include a response from OrcaTec, noting that Recommind’s implied threat of litigation is “nothing more than an attempt to bully the market place”.

There are several other articles and blog posts regarding the topic, but if I listed them all, I’d have no room left for anything new!  Sorry that I couldn’t include them all.

I reached out to Bill Dimm, founder of Hot Neuron LLC, makers of Clustify, which clusters documents in groups for effective, expedited review and asked him his thoughts about the Recommind press release and patent.  Here are his comments:

"Recommind's press release would have been accurately titled 'Recommind Patents a Method for Predictive Coding,' but it went with the much more provocative title 'Recommind Patents Predictive Coding,' implying  that its patent covers every conceivable way of doing predictive coding.  The only way I can see that being accurate is if you DEFINE predictive coding to be exactly the procedure outlined in claim 1 of Recommind's patent.  Of course, 'predictive coding' is a relatively new term, so the definition is up for debate.  The patent itself says:

'Predictive coding refers to the capability to use a small set of coded documents (or partially coded documents) to predict document coding of a corpus.' That sure sounds like it allows for a lot of possibilities beyond the procedure in claim 1 of the patent.  The press release goes on to say: 'ONLY [emphasis is mine] Recommind's patented, iterative, computer-assisted approach can 'bend the cost curve' of document review.'  Really?  So, Recommind has the ONLY product in the industry that works?  A few of us disagree.  Even clustering, which Recommind claims does not qualify as predictive coding will bend the cost curve because the efficiency boost it provides increases with the size of the document set.

Moving on from the press release to the patent itself, I would recommend reading claim 1 if you are interested in such things.  It is the most general method that the USPTO allowed Recommind to claim –  the other claims are all dependent claims that describe more specific embodiments of claim 1, presumably so that Recommind would have a leg left to stand on if prior art was found to invalidate claim 1.  Claim 1 describes a procedure for predictive coding that involves quite a few steps.  It is my understanding (I am NOT a lawyer) that the patent is irrelevant for any predictive coding procedure that does not include every single one of the steps listed in claim 1.  Since claim 1 includes things like identification cycles, rolling loads, and random sampling, it seems unlikely that existing products would accidentally infringe on the patent.

As far as Clustify is concerned, Recommind's patent is irrelevant since our procedure for predictive coding is different.  In fact, I explained in a presentation at a recent conference why random sampling is a very inefficient approach (something that has been known for decades in other fields), so I wouldn't even be tempted to follow Recommind's procedure."

So, what do you think?  Will the Recommind predictive coding patent allow them to rule predictive coding?  Or only their specific approach?  Will LeBron James ever win a championship?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: Hot Neuron is a partner of Trial Solutions, which has used their product, Clustify, in various client projects.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier
 

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares.  The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues.  Here’s a summary recap, with my ‘two cents’ on each item:

10. Less is more: The U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case that a “retention” policy is actually a destruction policy.  It’s important to routinely dispose of old data that is no longer needed to have less data subject to discovery and just as important to know where that data resides.  My two cents: A data map is a great way to keep track of where the data resides.

9. Sing Kumbaya: They may speak different languages, but you need to find a way to bridge the communication gap between Legal and IT to develop an effective litigation-preparedness program.  My two cents: Require cross-training so that each department can understand the terms and concepts important to the other.  And, don’t forget the records management folks!

8. Preserve or Perish: Assign the litigation hold protocol to one key person, either a lawyer or a C-level executive to decide when a litigation hold must be issued.  Ensure an adequate process and memorialize steps taken – and not taken.  My two cents: Memorialize is underlined because an organization that has a defined process and the documentation to back it up is much more likely to be given leeway in the courts than a company that doesn’t document its decisions.

7. Build the Three-Legged Stool: A successful eDiscovery approach involves knowledgeable people, great technology, and up-to-date written protocols.  My two cents: Up-to-date written protocols are the first thing to slide when people get busy – don’t let it happen.

6. Preserve, Protect, Defend: Your techs need the knowledge to avoid altering metadata, maintain chain-of-custody information and limit access to a working copy for processing and review.  My two cents: A good review platform will assist greatly in all three areas.

5. Natives Need Not Make You Restless: Consider exchanging files to be produced in their original/”native” formats to avoid huge out-of-pocket costs of converting thousands of files to image format.  My two cents: Be sure to address how redactions will be handled as some parties prefer to image those while others prefer to agree to alter the natives to obscure that information.

4. Get M.A.D.?  Then Get Even: Apply the Mutually Assured Destruction (M.A.D.) principle to agree with the other side to take off the table costly volumes of data, such as digital voicemails and back-up data created down the road.  My two cents: That’s assuming, of course, you have the same levels of data.  If one party has a lot more data than the other party, there may be no incentive for that party to agree to concessions.

3. Cooperate to Cull Aggressively and to Preserve Clawback Rights: Setting expectations regarding culling efforts and reaching a clawback agreement with opposing counsel enables each side to cull more aggressively to reduce eDiscovery costs.  My two cents: Some parties will agree on search terms up front while others will feel that gives away case strategy, so the level of cooperation may vary from case to case.

2. QA/QC: Employ Quality Assurance (QA) tests throughout review to ensure a high accuracy rate, then perform Quality Control (QC) testing before the data goes out the door, building time in the schedule for that QC testing.  Also, consider involving a search-methodology expert.  My two cents: I cannot stress that last point enough – the ability to illustrate how you got from the large collection set to the smaller production set will be imperative to responding to any objections you may encounter to the produced set.

1. Never Drop Your Laptop Bag and Run: Dig in, learn as much as you can and start building repeatable, efficient approaches.  My two cents: It’s the duty of your attorneys and providers to demonstrate competency in eDiscovery best practices.  How will you know whether they have or not unless you develop that competency yourself?

So, what do you think?  Are there other ways for CEOs to avoid eDiscovery nightmares?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off
 

Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule.  It provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

Let’s face it, every time we turn on our computers, we overwrite data.  And, the mere opening of files (without changing any data) can change the metadata of a file – for example, simply opening a Microsoft Access® database changes the last modified date of the Access file, even if no records are changed.  If there wasn’t some measure of “safe harbor” protection, an organization facing litigation might find it very difficult to conduct business during the case.

While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.  In this case, the defendant failed to suspend auto-delete on its email system when their preservation obligation commenced, resulting in emails only being available on back-up tapes.  Their argument that the tapes were “not reasonably accessible” was denied by the court, describing their request as “chutzpah”.

Of course, email, like any other type of ESI, should be subject to document retention and destruction policies and old emails should be purged when they reach the end of the retention period.  Microsoft Outlook® provides an option via its Auto Archive function to delete the emails instead of archiving them.  You can select this setting for all emails (via the Tools, Options menu, Other tab) or for selected folders (by right-clicking on them, selecting Properties and then selecting the AutoArchive tab).  That’s at the client level.

But, most organizations use Outlook through Exchange.  Exchange Manager enables administrators to set auto delete policies for the email user population to manage retention and destruction of emails, thus being able to disable  the auto delete function for users when the duty to preserve arises.  If your organization uses auto-delete, it’s important to have a policy in place for disabling auto-delete for litigation, whether at the Outlook client level, the Exchange level or with any other email system.

So, what do you think?  Does your organization use auto-deletion of emails?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency
 

Insanity is doing the same thing over and over again and expecting a different result.  But, in ESI review, it can be even worse when you get a different result.

One of the biggest challenges when reviewing ESI is identifying duplicates so that your reviewers aren’t reviewing the same files again and again.  Not only does that drive up costs unnecessarily, but it could lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

Of course, there are a number of ways to identify duplicates.  Exact duplicates (that contain the exact same content in the same file format) can be identified through hash values, which are a digital fingerprint of the content of the file.  MD5 and SHA-1 are the most popular hashing algorithms, which can identify exact duplicates of a file, so that they can be removed from the review population.  Since many of the same emails are emailed to multiple parties and the same files are stored on different drives, deduplication through hashing can save considerable review costs.

Sometimes, files are not exact duplicates but contain the same (or almost the same) information.  One example is a Word document published to an Adobe PDF file – the content is the same, but the file format is different, so the hash value will be different.  Near-deduplication can be used to identify files where most or all of the content matches so they can be verified as duplicates and eliminated from review.

Then, there is message thread analysis.  Of course, most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion.  To review each email in the discussion thread would result in much of the same information being reviewed over and over again.  Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.  That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about lunch plans or did you see American Idol last night).

FirstPass®, powered by Venio FPR™, is one example of an application that provides a mechanism for message thread analysis of Outlook emails that pulls the entire thread into one conversation for review as one big “tree”.  The “tree” representation gives you the ability to see all of the conversations within the discussion and focus your review on the last emails in each conversation to see what is said without having to review each email.  Side conversations are “branches” of the tree and FirstPass enables you to tag individual messages, specific branches or the entire tree as responsive, non-responsive, privileged or some other designation.  Also, because of the way that Outlook tracks emails in the thread, FirstPass identifies messages that are missing from the collection with a red X, enabling you to investigate and determine if additional collection is needed and avoiding potential spoliation claims.

With message thread analysis, you can minimize review of duplicative information within emails, saving time and cost and ensuring consistency in the review.

So, what do you think?  Does your review tool support message thread analysis?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 

Normally, eDiscovery Daily reports on cases related to eDiscovery issues after the decision has been rendered.  In this case, the mere filing of the lawsuit is significant.

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain.  An interesting article from Robert Hilson at the Association of Certified eDiscovery Professionals® (ACEDS™) discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  A copy of the article is located here.

J-M Manufacturing Co., Inc., a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. After the case was filed in January 2006, it remained under seal for nearly three years.  According to the complaint, during that time, a large-scale document review ensued (160 custodians) and McDermott hired Stratify, an outside vendor, to cull through the ESI.

J-M retained Sheppard Mullin Richter & Hampton to replace McDermott in March 2010.  Why?  According to the complaint, McDermott worked directly with the Assistant US Attorney to develop a keyword list for identifying responsive ESI, but, despite this effort, the first production set was returned by the government after they found many privileged documents. The complaint indicates that McDermott and its contract lawyers then produced a second data set again with a large number of privileged documents even though it was filtered through a second keyword list.

J-M contends in the complaint that McDermott's attorneys “performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”  After Sheppard replaced McDermott on the case, they asked for the privileged documents to be returned, but the “relator” refused, saying that McDermott had already done two privilege reviews before giving those documents to the government and, therefore, J-M had waived the attorney-client privilege. In the complaint, J-M contends that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.  It is unclear from the complaint whether McDermott provided the contract reviewers themselves or used an outside provider.  It will be interesting to see how this case proceeds.

So, what do you think?  Have you experienced inadvertent disclosures of privilege documents in a case?  Please share any comments you might have or if you’d like to know more about a particular 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.

eDiscovery Trends: Think Before You Hit Send
 

It’s not the only instance of a one character typo possibly ending a career; instead, it may simply be the latest.

Unless you’re living under a rock, you’re probably aware of the “Twittergate” story involving Rep. Anthony Weiner (D-N.Y.), where he initially claimed that a lewd photo posted via Twitter was posted by a hacker to his account, then subsequently admitted this past Monday that he, in fact, posted that picture.  Many are calling for him to resign from his Congressional position after posting the picture, as well as sending other pictures, which have since been identified.  (If you have been living under a rock, you can click here for more on the story).

The irony is that a one-letter typo may turn out to be his undoing.  Weiner intended to send the “tweet” as a direct message to another Twitter user, but used the ‘@’ instead of the ‘d’ (to indicate a direct message) to reference that user.  As a result, the message was published to all his followers, not just the intended party.  In fairness, even if he had sent the direct message correctly, he used a public photo sharing service, yFrog, to share the photo, so anyone that chose to browse through all of his photos would have still seen the controversial photo.

It is easier to communicate than ever, with a myriad of options from which to choose, including voice, video, email, posts, texts and “tweets”.  Perhaps, it’s becoming too easy.  Courthouses are filled with cases where “informal” communications are key evidence in determining the outcome of the case.  The formal typed letter has given way to the informal media of email to the even more informal media of posts, texts and “tweets”.  Now, just as important as the adage “think before you speak” is the adage “think before you hit send”.

We’ve all been there, hopefully with much less disastrous consequences.  If you’ve never selected ‘Reply to All’ by accident instead of ‘Reply’ when intending to reply to only the sender, please call me and let me know your secret.  Or, maybe, you’ve sent an email when upset that you regretted later.  Once released, those mistakes are out there and are difficult (if not impossible) to recall.

If you’re not in the habit of doing so already, it’s a good idea to take a deep breath before each email sent or each post made and review what you’re about to send out into the world.  Think before you hit send.  If you don’t, you just might be the topic on a future ‘eDiscovery Case Law’ post on eDiscoveryDaily!  😉

So, what do you think?  Do you have any cases that are driven by informal communications?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: The Best SaaS Providers are Certifiable
 

The increasing popularity of cloud-based Software-as-a-Service (SaaS) solutions is becoming well documented, with this very blog noting Forrester and Gartner predictions of tremendous growth in cloud computing over the next several years.  We’ve also noted the importance of knowing where your data is stored, as many online poker players learned the hard way when the recent US government crackdown of several gambling sites left them without a way to recover their funds.

If only there were some sort of certification, administered by an impartial third party, to ensure that your SaaS provider has implemented policies and processes that keep your information secure, stable and safe.  There is such a certification.

SAS 70 (the Statement on Auditing Standards No. 70) defines the standards an auditor must employ in order to assess the contracted internal controls of a service provider. Service providers, such as insurance claims processors, credit processing companies and, especially pertinent to eDiscovery, hosted data centers, are evaluated by these standards. The SAS 70 was developed by the American Institute of Certified Public Accountants (AICPA) as a simplification of a set of criteria for auditing standards originally defined in 1988.  Standards such as SAS 70 became critical in the wake of the Sarbanes-Oxley, which created significant legal penalties for publicly traded companies who lacked sufficient control standards for their financial information.

Under SAS 70, auditor reports are classified as either Type I or Type II. In a Type I report, the auditor evaluates the service provider to prevent accounting inconsistencies, errors and misrepresentation. The auditor also evaluates the likelihood that those efforts will produce the desired future results. A Type II report goes a step further.  It includes the same information as that contained in a Type I report; however, the auditor also attempts to determine the effectiveness of agreed-on controls since their implementation. Type II reports also incorporate data compiled during a specific time period, usually a minimum of six months.

SAS 70 reports are either requested by the service provider or a user organization (i.e., clients). The ability for the service provider to provide consistent service auditor's reports builds a client's trust and confidence in the service provider, satisfying potential concerns. A SaaS (2 a’s, as opposed to one for SAS) provider that has received SAS 70 Type II certification has demonstrated to an impartial third party a proven track record of policies and processes to protect its clients’ data.  When it comes to your data, you want a provider that has proven to be certifiable.

So, what do you think?  Is your SaaS provider SAS 70 Type II certified?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for Trial Solutions, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).  Our clients’ data is hosted in a secured, SAS 70 Type II certified Tier 4 Data Center in Houston, Texas.

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.