Trials of in-house e-Discovery
Litigation support professionals across the world will know that having your strategy in place for how you support and manage your clients data is important
This strategy can be either to bring client data management in-house or outsource it. There is, it should be said, no exact answer to this question. The answer is more as to whether you do or do not have a strategy in place. However if you are considering bring e-discovery in-house you should do so with your eyes open.
Potential benefits of in-house eDiscovery
Firms that bring eDiscovery in-house often do so by claiming that it will result in cost savings for their client and a desire to maintain control of the disclosure process. Law firms and in-house legal departments that have invested in infrastructure, software and know-how in order to deliver this type of solution are able to save on the cost of outsourcing eDiscovery. Law firms in particular may use this option as part of their client on-boarding and retention strategy. In fact, some law firms turn their in-house eDiscovery solution as a profit centre by adopting a similar charging structure as an outsourced eDiscovery vendor.
All of this is a perfectly sound strategy, as long as it is appreciated that to bring eDiscovery in-house and provide a service that is similar to that of an external eDiscovery vendor does require capital expenditure in both the equipment and importantly the right people. In order to deploy an in-house solution you need the correct processes and expertise. Discovery processing is a full-time job and not one to be seen a part time role, it also requires continual training on the latest relevant technologies and solutions.
The consequences for making mistakes in this process can be costly in both financial and reputational terms. For example in recent years The Royal Bank of Scotland (RBS) and Herbert Smith Freehills (HSF) have been criticised in the High Court for their “unfocused”, “unsettling” and “less than compelling” approach to disclosure in the bank’s £4bn battle with shareholders.
Before bringing e-Discovery in-house you should consider what are the options should there be a problem with either the data itself, if the data volume is too large and unwieldy to handle, or of the timescales are too onerous? Data by its very nature is unpredictable and it is very easy to mishandle files. You must be able swiftly and precisely handle multiple data sources, various software versions, proprietary data, password-protected documents, unreadable files etc. An eDiscovery vendor that specialises on this type of work will have various techniques and experiences in handling all manner of data types.
With these potential issues in mind you should consider making sure you have a good relationship with an external vendor (see our RFP template for assessing eDiscovery vendors), even if you have moved some of the e-discovery functions in-house. By developing long-term, deep relationships with e-discovery experts, law firms are able to offer much more to their end clients.
In summary, any law firm considering moving the technology and skills associated with e-Disclosure should consider these points:
• As cases get larger and more complex, as do the expectations from an in-house solution.
• There is not a “one-size-fits-all” solution for all matters and in-house solutions tend to become a little too reliant on “templates”.
• Software and hardware infrastructure requires constant on-going investment and development.
• In-House solutions require full-time, dedicated experts (e.g. sql engineers, software developers and network engineers).
• An In-House solution will not be able to work as efficiently and flexibly as the more experienced, specialised e-Disclosure provider.
• The law firm or In-House department assumes all risk in e-discovery process – better to pass the risk to qualified 3rd party?
• Is the process defensible? Chain of custody, defined and recorded procedures etc
Feel free to contact us today regarding any of your eDiscovery requirements- a member of our team will get back to you and happy to help!