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What eDiscovery Professionals Can Learn from the Internet Gambling Crack Down
 

Many of you may have heard about the FBI cracking down on the three largest online gambling sites in the past few days, as the owners of those sites in the United States have been indicted and charged with bank fraud, money laundering and illegal gambling offenses and the sites have been essentially shut down in the US.  Restraining orders have been issued against more than 75 bank accounts in 14 countries used by the poker companies PokerStars, Full Tilt Poker and Absolute Poker.  Many US customers of these sites are now scrambling to try to get their funds out of the sites and finding it difficult to do so.

So what?  This is an eDiscovery blog, right?  What does an Internet gambling crack down have to do with eDiscovery?

PokerStars, Full Tilt Poker, Absolute Poker and other gambling sites are cloud-based, Software-as-a-Service (SaaS) applications.  Just like Amazon, Facebook, Twitter, eBay, YouTube and SalesForce.com, these sites provide an application via the web that enables its clients to receive a service.  In the case of Amazon, it’s the ability to purchase any number of products.  For Facebook, it’s the ability to share information with friends and family.  For these gambling sites, it’s the ability to play poker for money with anyone else in the world who has the same gambling itch that you do and a broadband connection.

The problem is: in the US, it’s illegal.  The Unlawful Internet Gambling Enforcement Act of 2006 prohibits gambling businesses from knowingly accepting payments related to a bet or wager that involves the use of the Internet and that is unlawful under any federal or state law.  So, these sites are hosted in other countries to attempt to skirt the law.

What many US customers of these sites are finding out is the same thing that eDiscovery professionals discover when they need to retrieve cloud-based data in response to a discovery request: it’s imperative to know where your data is stored.  It’s likely that many customers of these gambling sites knew that their funds were kept off-shore, while others may not have known this was the case.  Regardless, they’re now scrambling to get their data (i.e., funds) back — if they can.

Many organizations are “in the same boat” when it comes to their SaaS providers – it may be unclear where that data is being stored and it may be difficult to retrieve if it’s stored in a foreign country with a different set of laws.  It’s important to establish (in writing if possible) with the provider up front where the data will be stored and agree on procedures such as records management/destruction schedules so that you know where your data is stored and can get access to it when you need it.  Don’t gamble with your data.

So, what do you think?  Do you have organizational data in a SaaS-based solution?  Do you have a plan for getting that data when you need it?  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 Tier 4 Data Center in Houston, Texas, where Trial Solutions is headquartered.

Working Successfully with eDiscovery and Litigation Support Service Providers: Checking References – General Suggestions
 

Yesterday, we talked about the importance of checking references when considering eDiscovery and Litigation Support Service Providers.  In the next blogs in this series, I’m going to suggest some questions you may consider asking when doing a reference check.  First, however, let me make some general suggestions:

  • When you ask a vendor for references, ask for clients that had a project similar in size and scope to yours.  You want to speak with people who had similar requirements regarding services and schedules, and that had document or data collections similar in size and format to yours.
  • When you ask a vendor for references, let them know that you’d like to speak with two different types of people:
    • End-users of the vendor’s work product
    • The vendor’s main, day-to-day point of contact
  • Don’t call a reference out of the blue.  Make an initial contact by email to introduce yourself and to schedule a call.  If the call is scheduled, you are more likely to get better attention and more time. 
  • Be prepared with a list of specific questions.  Don’t call and ask only general question like “Were you satisfied with the quality?” and “Did they meet your deadlines?”
  • Try to engage the person you are speaking with in conversation.  Don’t settle for yes and no answers.  When someone responds “yes” or “no” to a question, ask them to provide details.  This may uncover information that is important to you or it may trigger additional questions that you should ask.
  • Always send follow-up emails to the people with whom you speak thanking them for their time and information. 

Next we’ll talk about specific questions you can consider asking when checking references, so stay tuned.

How do you approach checking references?  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: Is Checking References Important?
 

Over the years, I’ve been asked many times to serve as a reference for vendors with which I’ve worked.  And, I’ve taken many reference-check phone calls.  More often than not, those calls were less efficient and productive than they could have been — because they weren’t planned and good questions were not asked.   In the next blogs in this series I’ll make some suggestions for doing an effective reference check.

First, recognize that checking references is very important.  Yes, it is almost certain that a vendor will direct you to clients that are satisfied, so you know — to an extent — what to expect.  You need to speak with them anyway.  There are a few reasons for this:

  • The clients provided to you as references might have had different priorities than you do.  They may be satisfied because the vendor performed well in an area that was most important to them.  That same client, however, may be able to shed light on “minor problems” that in your case could be “major problems”.  Of course, this assumes that you ask the right questions.
  • The clients provided as references may be inexperienced in eDiscovery and litigation support, and therefore not a good judge of the vendor’s work.  Clients like this may be satisfied because they had a good relationship with the vendor staff and nothing blew up in their faces.  That doesn’t necessarily mean that the work was done well or cost-efficiently.  When you speak with references, you can get a feel for their level of experience and knowledge, and be able to determine, therefore, whether their good experience with the vendor is truly indicative of high-quality and cost-effective work.
  • The clients provided as references may not have worked with the vendor on a case that was similar in scope to yours, or they not have had requirements similar to yours.  This too, can be discerned with the right questions.

In the next posts in this blog series, I’ll suggest an approach to checking references and give you examples of questions that can uncover the information you need when doing a reference check.

Do you get valuable information when you check references?  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: Dotting the I’s and Crossing the T’s
 

Yesterday, we talked about information to include in a Request for Proposal (RFP) to request eDiscovery and litigation support services.  Before moving forward with a service provider for a project, there are a few due diligence steps you should take to protect yourself and your case-sensitive information.

First, it may be appropriate to ask the service provider to verify that it does not have a conflict of interest.  For many eDiscovery services, this step may not be necessary.  If, however, you are asking a service provider to assist with substantive consultative help, you want to ensure that – at a minimum – it is not providing similar services to the other side in the litigation.

Once you’ve established that there is no conflict, you want to protect case information that you provide to the vendor – information in the form of communication and information in the documents and data.  Require that the vendor sign a Non-Disclosure Agreement (NDA) before communicating or transmitting sensitive and confidential information.

And finally, you and the vendor should both sign off on a Service Level Agreement (SLA) that clearly defines the work to which you’ve agreed.  A Service Level Agreement should include — at a minimum:

  • A complete description of each service to be performed
  • A complete description of each deliverable
  • A description of agreed upon performance levels (guarantees and warranties provided by the service provider; this may be in the form of quality assurance guarantees, system availability and downtime, and so on).

In addition, a service level agreement might include the following information

  • Pricing for services
  • Billing information
  • Contact information

One other important “due diligence” step is checking references.  We’ll cover that in the next posts in this series.  I’ll give you some suggestions for doing an effective reference check that will get at the information you need to know.

What due diligence steps do you take with a service provider?  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: Information to Provide in an RFP
 

Open, two-way communication with a service provider is absolutely critical to a successful project.  It needs to start early, even before a project starts.  For many projects, it starts with the Request for Proposal (RFP).  Your goal with an RFP is to get good information from a vendor: information on pricing, information on schedule, information on approach, and information on deliverables.  To give you complete, accurate information, they need information from you.

Include this information in your RFPs:

  • Information about your Firm/Organization (location, key contacts)
  • Information about the Case (the party you represent, the case schedule)
  • Information about the Proposal Submission Process (contact information for the person who can answer questions about the RFP; contact information for those to whom the proposal should be submitted; the date the proposal is due; in what form the proposal should be delivered; any requirements you have regarding the format of the proposal)
  • Description of the Services you will Require
  • Information about the Scope of the Project  (the size of a document/data collection, types and characteristics of the documents/data)
  • Information on the Deliverable to the Vendor (when documents/data will be available to the vendor; in what form they will be delivered)
  • Description of the Deliverables you Require (formats, media, data elements, etc.)
  • Date by which the Project must be Completed (and include interim milestone dates if that’s appropriate)
  • Description of your Planned Participation in the Project (will you participate in training?  will you be onsite for any portion of the project?)
  • Description of your Preferred Method of Communication with the Service Provider
  • Description of your Requirements regarding Status Reports (how often do you require them? what information should be included?  to whom should they be submitted?)

Later in this blog series, we’ll discuss what questions you should ask in a proposal for several types of eDiscovery services.

What information do you provide to a service provider in an RFP?  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: The Evaluation Process
 

Sometimes selecting a service provider for a project will be a quick, easy process.  You may have a small project — similar to others you’ve handled — that you need to get up and running quickly.   If you have a list of good vendors with which you’ve worked, it may be as easy as a phone call or two to check availability and you’ll be all set.  In other cases, your selection process may be more involved.  Perhaps you are looking to build a preferred vendor program or you’ve got a large case involving many stakeholders who are looking for a thorough evaluation.  When a thorough evaluation is needed, here’s a suggested approach:

  1. Make a list of candidates:  Include vendors that have done a good job for you in the past.   Ask peers in the industry for suggestions.  In some cases, stakeholders may ask you to consider vendors with which they have a relationship.
  2. Make initial calls:  Call each vendor to get general information, to ensure they don’t have a conflict of interest, and to gauge their availability and interest in the project.  Revise the list if necessary.
  3. Send out Request for Proposal (RFP) / Request for Information (RFI):  In the next posts in this series, we’ll talk about these documents, so stay tuned.
  4. Review the responses.  Check the responses for completeness.  If there are holes, you can request missing information, or you might consider scratching a vendor from the list if there was blatant disregard for the requirements. 
  5. Follow-up:  You’ll probably have questions about every proposal, and you’ll want to clarify some points with each vendor.  And, there may be some points you’ll want to negotiate.  Even if a proposal is clear and doesn’t require an explanation, it’s useful to verify your understanding of approach and pricing.
  6. Rank each vendor:  List each evaluation point by importance, and rank each vendor for each point.  While this is an important step and a valuable tool, don’t let it replace good judgment.  Sometimes your instincts may tell you something different than the rankings do, and that should not be ignored!
  7. Check references for the vendors of most interest.  Later in this series, we’ll talk about effectively checking references.
  8. Make your selection (or your recommendation to the stakeholders).
  9. Notify the vendor you’ve selected and agree to a contract.
  10. Contact the other vendors and tell them they were not selected.

What has been your experience with evaluating and selecting service providers?  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: Other Evaluation Criteria
 

In the last posts in this blog series, we talked about evaluating service provider pricing, quality, scalability and flexibility.  There are a few other things you may wish to look at as well, that may be especially significant for large, long-term projects or relationships.  Those things are:

  1. Litigation Experience:  Select a service provider that has litigation experience versus general business experience.   A non-litigation service provider that does scanning — for example — may be able to technically meet your requirements.  They are probably not, however, accustomed to the inflexible schedules and changing priorities that are commonplace in litigation work.
  2. Corporate Profile and Tenure:  For a large project, be sure to select a service provider that’s been around for a while and has a proven track record.  You want to be confident that the service provider that starts your project will be around to finish your project.
  3. Security and Confidentiality:  You want to ensure that your documents, data, and information are secure and kept confidential.  This means that you require a secure physical facility, secure systems, and appropriate confidentiality guidelines and agreements.
  4. SaaS Service Providers: For them, you need to evaluate the technology functionality and ensure that it includes the features you require, that those features are easy to access and to use, and that access, system reliability, system speed, and system security meet your requirements.
  5. Facility Location and Accessibility:  For many projects and many types of services, it won’t be necessary to spend time on the project site.   For other projects, that might not be the case.  For example, if a service provide is staffing a large document review project at its facility, the litigation team may need to spend time at the facility overseeing work and doing quality control reviews.  In such a case, the geographic location and the facility’s access to airports and hotels may be a consideration.

A lot goes into selecting the right service provider for a project, and it’s worth the time and effort to do a careful, thorough evaluation.  In the next posts in this series, we’ll discuss the vendor evaluation and selection process.

What has been your experience with evaluating and selecting service providers?  What evaluation criteria have you found to be most important?  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: Capacity, Scalability, and Flexibility
 

In the last couple of blogs in this series, we talked about evaluating service-provider pricing and quality.  The highest-quality, fairest-priced vendor is of no use to you, however, if they can’t get your work done by when you need it.  And, unfortunately, it’s not as straightforward as telling them what you have, what you need, and by when you need it.  Early in an ediscovery project, you are in a world of “unknowns”.  You are working with assumptions and best guesses, and the only thing you know for sure is that things will change.  The bottom line is, when you start talking to service providers, you probably won’t have good information. 

One thing, however, most likely won’t change:  your schedule.  Regardless of how big the job gets, you still have production deadlines and interim milestones to meet.  You, therefore, need a vendor that has the capacity to handle your work, that can scale up with the resources needed to deal with increased volume, and that can be flexible to adapt to changing needs and priorities.  What’s important today, may take a backseat to something more important that arises tomorrow.

The best way to deal with this is open communication with the service provider in the evaluation process.  Don’t limit your questions to computing power and capacity.  That’s just part of the picture, and that’s the easy part.  You want a service provider who will go the extra mile and work with you to get you what you need, when you need it.  The technology doesn’t do that. 

In your conversations with service providers, provide information on what you do know, what you are assuming, and what you are guessing.  Ask how changes in the volume or requirements will impact their ability to meet your schedule.  Ask about their ability to scale up.  Ask about their procedures for changing priorities in processing a collection.  Give them best and worst case scenarios and ask for commitments for either situation.  Ask about after-hours resources and their ability and willingness to run multiple shifts if that’s needed.  And ask for references — specifically for people who had last minute, dramatic changes to the scope of a project. 

What has been your experience with service providers meeting your schedule requirements?  Do you have good or bad experiences you can tell us about?  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: Evaluating Quality

Yesterday, we talked about evaluating service-provider pricing.  That, of course, is just part of the picture.  You need a service provider that can and does provide high-quality work that meets your expectations.

This can be hard to assess when you are evaluating a service provider with which you don’t have prior experience. And, unfortunately, it’s just not possible to know up-front if a service provider will do high-quality work on any given project.  You can, however, determine whether a service provider is likely to do high-quality work.  Here are some suggestions for doing so:

  1. Ask for references, and check them.  Ask for both end-user references and for people who were the point of contact with the service provider.  And ask for references for projects that were similar in size and scope to your project.  Later in this blog series, I’m going to give you some suggestions for doing an effective reference check.
  2. Look at their procedures and processes.  This is important for tasks that are labor intensive, and for tasks that are heavily technology based too.  Look at intake procedures, workflow procedures, and status-tracking procedures.
  3. Look at the type and level of quality control that is done.  Find out what is checked 100%, what is sampled, what triggers rework, what computer validation is done, and what is checked manually.
  4. Ask about staff qualifications, experience and training.
  5. Ask about project management.  A well-managed project will yield higher-quality results.  For certain types of projects, you might also require interviewing the project manager that will be assigned to your project.
  6. Evaluate the quality of your communication with the service provider during the evaluation process.  Did they understand your questions and your needs?  Were documents submitted to you (proposals and correspondence) clear and free of errors?  I might not eliminate a service provider from consideration for problems in this area, but I’d certainly question the care the service provider might take with my work if they didn’t take care in their communications with me.

What has been your experience with service provider work quality?  Do you have good or bad experiences you can tell us about?  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: Evaluating Price
 

When you are looking for help with handling discovery materials, there are hundreds of service providers to choose from.  It’s important that you choose one that can meet your schedule, has fair pricing and does high-quality work.  But there are other things you should look at as well. 

In the next few blogs in this series, we’re going to discuss what you should be looking at when you evaluate a service provider.  Note that these points are not covered in order of importance.  The importance of any single evaluation point will vary from case to case and will depend on things like the type of service you are looking for, the duration of the project, the complexity of the project, and the size of the project.

Let’s start with Price.  Obviously, costs are significant and the first thing most people look at when doing an evaluation.  Unfortunately, many people don’t look at anything else.  Don’t fall into that trap.  If a service provider offers prices much lower than everyone else’s, that should sound some alarms.  There’s a chance the service provider doesn’t understand the task or is cutting corners somewhere.  Do a lot of digging and take a close look at the organization’s procedures and technology before selecting a service provider that is comparatively very low-priced. 

There’s another very important consideration when you are comparing service provider pricing:  not all pricing models are the same.  Make sure you understand every component of a service provider’s price, what’s included, what’s not, what exactly you are paying for, and how it affects the bottom line.  Let me give you an example.  Some service providers charge per GB for “input” gigs for electronic discovery processing, while others charge per GB for “output” gigs.  Of course, the ones that charge for “input” gigs charge a lower per gig price, but they are charging for more gigabytes. 

Understand how a service provider’s pricing is structured and what it means when you are evaluating prices.  It’s always a good idea to ask a service provider to estimate total costs for a project to verify your understanding.

In the next blogs in this series, we’ll look at other things you should be looking at when selecting a vendor.

What has been your experience with service provider work?  Do you have good or bad experiences you can tell us about?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.