I. Introduction
Lawyers face many challenges in the litigation process. Many of these challenges present themselves during the discovery process, which can be incredibly expensive. [1] With the ubiquitous nature of current technology, especially in the business world, the discovery rules have had to adapt. New rules, the electronic discovery (“e-discovery”) rules, in the Federal Rules of Civil Procedure account for discovery of electronic documents. [2] Attorneys have had to adjust to these new rules by learning a novel language, and familiarizing themselves with how to obtain such electronic information from their clients and what kinds of information to ask for from opposing counsel. [3]
One way attorneys can adapt to these new rules and attempt to discover all relevant documents at a lower, efficient cost is to invest in e-discovery software. Many different vendors, such as Attenex, have software specifically designed for attorneys and their discovery needs. [4] Different types of software can search through computers, databases or hand-held devices for a variety of documents, pictures, data and other files that are relevant to the lawsuit.
This article provides a guide for lawyers searching for ways to make e-discovery easier by choosing an e-discovery software vendor. The first step when evaluating vendors is to find one that has the necessary combination of legal and technical knowledge.
II. Vendor’s Legal Knowledge
Because the law is such a specialized field with many intricate layers and interpretive rules that differ depending on the jurisdiction, it is important that lawyers work with an e-discovery vendor that understands the legal environment, what types of information lawyers are required to disclose, and the information lawyers can obtain from opposing counsel. It is important that companies creating e-discovery software understand what types of documents are discoverable and what information in each document is searchable. [5] A company with more legal knowledge can more easily understand the attorney’s issues with electronic discovery and understand the need to adapt as courts interpret the rules.
Indicators of how versed the vendor is in the legal field include how many employees have a legal degree and whether the vendor’s employees consult with attorneys about their business. [6] A start-up company may have been created by a former practicing attorney who realized the need for e-discovery software. Another option besides going to a technical vendor is to partner with a law firm that specializes in e-discovery issues and can provide the services needed. [7]
Balancing against this requirement for legal knowledge is the need for vendors with high technical knowledge. A combination of both excellent, practical legal knowledge and strong technical experience in the vendor’s employees would be ideal, but probably rare. [8] It is important that the company know how to deal with technical issues, ensuring the quality of the product and services they are selling.
Important questions to ask are:
• How many employees have experience in the legal field?
• Do any of the company’s executives have a legal degree?
• How does the company keep up with the changing legal environment?
• Why did the company get involved in the e-discovery business?
III. History of the Vendor
One may think that the longer the vendor has been around, the more reliable that vendor is. This is true to the extent that the vendor will be more experienced in some ways and may have a wider existing client base. However, many older companies, even those only ten or more years old can lag behind the newer, smaller companies. Newer companies, realizing the need for e-discovery software, often have a fresh perspective because they have an outside view of the market. Smaller companies are often more able to adapt to changes and accommodate clients in personalizing software. The risk with new, small companies is their ability to survive in the market. Software needs to be updated and supported for long periods of time, so it’s important to select a vendor with future longevity.
Conrad Jacoby, a consultant with litigation experience that focuses on e-discovery, explains that e-discovery is always changing and “cutting edge services from even a few years ago may be quaint and inefficient by today’s standards.” [9] Therefore, it is important that attorneys find a vendor that can adapt and update its technology.
Additionally, it is important to separate the examination of the life of the company and the length of time the company has been working with electronically stored information. [10] Even well-established companies may have little experience with e-discovery. [11]
Because e-discovery software can be a big investment, it is worthwhile to take the time to examine the general opinion of the company and its e-discovery services. Attorneys must ask the vendor for specific clients or, if they cannot provide them due to privacy concerns, ask them for general case studies or stories about past clients. Vendors should be able to share their relevant experience and provide examples of past projects they have worked on. [12]
If the lawyer can secure references from the vendor, he or she needs to call those references to ask about the vendor’s responsiveness, timeliness with project delivery, quality of the products, and any other concerns you have. [13] In addition to calling past or current clients, an easy way to find out about the vendor is to do an online search. [14]
Important questions concerning company history are:
• How long has the company been providing e-discovery software?
• Does the company have a list of current and past clients to serve as references?
• Explain the company’s history in e-discovery – what types of projects has the company worked on in the past?
• What was the most complicated e-discovery project the company has worked on?
IV. Examining the Actual Product
In order to evaluate the products that the vendor offers and the usefulness of those products, it may be necessary to bring in someone with a strong technical background. When evaluating these vendors, it is important to have both the legal background and practical technical knowledge to ensure that the product will be useful for the discovery process and that the product can be implemented and used.
On the technical side, it is important to examine what the software will actually do. Most attorneys will likely need software that can explore many different types of files (emails, pictures, Word documents, etc.) on a variety of operating systems and types of hardware (desktops, laptops, Macs, cell phones, etc). Deciding on software that does not do everything it needs to will cost the customer more in the end, because the vendor will have to add on more features and it will take much more time. Therefore, it is important that lawyers evaluate what their clients have in terms of documents and technology and compare that with what they believe will need to be provided during discovery so the software can do everything it needs to do. However, it is important not to get overwhelmed and ask for too much. Purchasing software and services that do more than is needed is costly because the customer is paying for things he or she does not need.
Some law firms or their clients may already have technology they use for discovery, so it is important the law firm evaluate how the new software will interact and interface with the old software. A competent vendor will at least understand what other software is out there and a good vendor will be able to provide software that interacts with the existing set-up. In this evaluation, lawyers must look out for hidden costs of customization when it comes to creating an interface between two pieces of software and obtain an accurate estimate before deciding on a vendor.
As explored in Information Week, an online magazine, it is important to question the speed of the software. [14] The faster the software can search for documents, the less time the firm will have to spend on discovery costs – saving money for the client and time for the attorneys involved. [16] Also very important is the format of the output from the software. [17] The output needs to be understandable to a non-technical audience and appropriate for presentation in court. [18]
Beware of vendors that offer a “one stop shop” – a variety of software packages for every conceivable litigation need. It is important to find vendors that are skilled in e-discovery technology. [19] A company with many other services may indeed have good e-discovery software, but more likely than not a company that focuses all its efforts on e-discovery will have the most to offer. [20]
Important questions to ask about technology:
• How extensive is the searching capability of the software?
• What specific documents will need to be discovered?
• What kind of clients will the law firm need to use the software for? What are that firm’s current computer systems like?
• What will the output from the software be? Is it appropriate for court?
V. Making the Final Decision
Once technical decisions are made, it is important to consider how the software will be used in the future, beyond immediate needs. If the need for e-discovery software arises because of a particular client, it is important to think beyond that client and how the software can be used for future clients. Additionally, it is important to include the specific client in the decision about a e-discovery vendor. [21] Each client has its own way to store data and process information, and the client needs to understand how the software will interact with their system. [22]
Other important issues to research about vendors include confidentiality and communication. Attorney-client privilege is incredibly important and attorneys must choose vendors that respect that privilege. One must investigate the vendor’s security practices and how the vendor stores the information it finds. Evaluating the vendor’s ability to communicate is vital in the process as well. [23] The vendor needs to be able to understand legal language and be available for questions frequently throughout the discovery process. [24] It’s also important that the vendor be available for updating software for both legal reasons – laws changing – and technical reasons – updates in operating systems or searching algorithms.
Important final questions:
• How broadly can this software be used? How many clients’ systems are compatible with the software?
• How does the company address attorney-client privilege concerns?
• How frequently is the company available for support and technical questions?
VI. Conclusion
The e-discovery vendor process can be complicated and confusing. It’s important to keep the vital questions in mind and involve knowledgeable technical people in the selection process. Beware of including too many decision-makers, however. Too many opinions can confuse the process. Despite the confusing selection process, in the end it will be very worthwhile to select software that will apply in many situations and provide the documents and data needed in the litigation process.
[1] John Bace, Cost of E-Discovery Threatens to Skew Justice System, Gartner Ras Core Research, Apr. 20 2007, http://www.h5technologies.com/pdf/gartner0607.pdf.
[2] Fed. R. Civ. P. 26(b)(2)(B).
[3] Bace, supra note 1.
[4] Attenex, http://www.attenex.com (last visited Apr. 3, 2008).
[5] Fed. R. Civ. P. 26(b).
[6] Attenex, supra note 4.
[7] Ackerman Senterfitt, http://www.akerman.com (last visited Apr. 3, 2008).
[8] Bace, supra note 2.
[9] Conrad Jacoby, E-Discovery Update – by Fios Inc.: Choosing An E-Discovery Vendor, LLRX.Com, Dec. 17, 2006, http://www.llrx.com/columns/fios12.htm.
[10] Id.
[11] Id.
[12] Id.
[13] Mark Yacano, Vetting Your E-Discovery Vendor: The Lawyer’s Perspective, Law Practice Today, July 2004, http://www.abanet.org/lpm/lpt/articles/ftr07043.html.
[14] Id.
[15]Mary Hayes Weier, Autonomy Introduces Search Software for Electronic Discovery, Information Week, May 14, 2007, http://www.informationweek.com/news/showArticle.jhtml?articleID=199501636.
[16] Id.
[17] Yacano, supra note 5.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Jacoby, supra note 1.
[24] Id.