Aspects Crucial to Choosing the Right eDiscovery Service Provider

In my first post, Introduction to eDiscovery in South Africa, I quoted a UK lawyer who included the phrase “...using a good provider...” in her description of how to handle eDiscovery. This is a worthy topic deserving a post of its own.

How do you find and choose the right provider? How do you know if they are good enough for your case and, if you are a lawyer, the right one for your client? I will endeavour to offer my “2 cents”!

You want to know if they can do the job and with which technology. That sounds obvious but there is much more to it. Let us begin with the technology. Have them explain to you which systems they use and what each one does. You need to know if the main database solution and processing software is well recognised in the industry and as I have previously said there are a large number out there these days but ask for details of the track record of their proposed systems. How long have they been established in the market? I am deliberately, in this post, not going to name names but you have to know if the proposed solution can look after all that you require in your particular case. For example some systems are great with electronic docs but not good with paper – if you have a mixture of paper and electronic or just paper, then this is crucial.
You need to have the correct information the format of your data. In other words, is it in its native form or has it or some of it been converted to, for example PDF? I once turned down a large case involving well over a terabyte of data because the client insisted on a particular solution being used to first cull the data then review it. I took the view that it was the wrong solution for this case as the data was no longer native. Via an in house Document Management Solution all the native files had been converted to PDF’s and whilst this system could adequately cope with the PDF’s, most of the rich metadata contained in the native files had been lost. This was very important here as the volumes were so large and the client expected a major culling exercise free of charge which would have been possible with native files. The client and the law firm would not listen and still insisted on this particular solution so I politely withdrew. Frankly, I would have earned a lot of money for my Company but I knew it would have been wrong and preserving my reputation was more important. The end of this story, by the way, is that another provider agreed to do it with that solution, but the end client company went into liquidation before the case got off the ground. Shame, as I was itching to see my point proved!

The provider should be able to give you accurate information about the speed of their solutions. There is little point in proceeding if the solution is slow or does not have the capacity to deal with your data in the time required. Having said that, it is crucial that you engage with a provider at the earliest possible opportunity. You can hardly blame the provider or their system if you have given them instructions only a few days before discovery is due! Remember also that it will be the quality and speed of your internet connection that will determine the speed the solution when you are working on it. If I had 1 Rand for every time a lawyer or other user has told me that they cannot open a document on the hosted solution or it takes ages to do so I would be very rich. They always think it is the system and 99 times out of 100 is their own it infrastructure.

Whilst most database solutions have similar features you must see a demo of the solution and get the service provider to demo and / or explain it to you,  being specific about how this system can help you in this particular case. It is crucial that you feel comfortable with operating the system once you have had training, otherwise it will never work for you. I mention training and of course this is absolutely vital. You need to know who will train you. What experience do they have? Are they qualified or certified in this particular product?
I want to re-emphasise about the track record of the proposed provider. Can they look after all aspects of the case for you or do they outsource some of it? It might not necessarily matter but you have to know at the outset. For example they may be able to process data and host it in a database solution but not have in house forensic people to collect the data forensically or may not process paper documents in house. If any aspect of their work is to be outsourced, not only must you know at the outset but you have to know the identity of the outsource company and whether your lead provider will accept accountability and liability for their work.
Many years ago in the US and UK, before we all moved into the electronic age there were many providers who simply handled paper. Once they saw the digital revolution some of them quickly announced themselves to be electronic data specialists simply because they had acquired a piece of software. Trust me, to be a good eDiscovery provider requires a whole lot more than buying a software solution. A robust and safe infrastructure is required (security is paramount!) as well as a team of qualified experts and you need to be asking all these questions.

Another crucial element is technical support. What can the provider offer in this important aspect? I recall speaking to a law firm in London a few years ago and they told me they had a bad experience with one particular database solution and would never use it again. When I questioned this, as the solution had a great reputation, they told me that it was because when support was needed – either when something went wrong or they needed the system to do something, their provider said they would have to go back to the software technical support people. It often took several days to solve the issue, because the company was in a different country and locally the provider had insufficient knowledge of the tool!

Mentioning other countries leads me to my next point - that you have to know where the data in your case will be hosted. In which country? At which premises? Not only do you need to be satisfied about the security of your data but, crucially, you have to know the country location in case of Data Protection and Privacy Laws. This is a big topic and one that deserves a post of its own later but suffice to say at this stage that you could be running severe risks for your client if you allow data to be hosted in a different country.

I have not mentioned the cost and of course, it goes without saying that you need to know the costs and exactly what is and is not covered. I saw this cartoon on LinkedIn, which seems to me to sum it up perfectly.
It is difficult, if not impossible, for providers to give precise fixed costs without knowing exactly what, and how much data is involved, as well as a host of other things. However, they must provide sufficient information to allow the law firm and its client to make an informed decision, and there has to be a list of assumptions and exceptions etc, coupled with an agreement that any additional work will be pre-notified, with a cost, before proceeding. By the way, never let price override value.

I have two more factors to put into the equation. Firstly, and you may raise your eyebrows a little at this one. Should you not know something of the financial standing of your proposed provider? I think so, because I have seen instances of matters where a provider has gone into liquidation and apart from the hassle of finding an alternative at what may be a crucial point in the case, there can also be the real difficulty of transferring the data in your case, especially if the Administrators or Liquidators attempt to exercise a lien. Secondly it is about people. You MUST be comfortable with the skills and personality of those who will be looking after your case and with whom you will be working. If there are identical proposals from two providers and all other questions are answered then this may tip the balance.

So there you have it, and clearly it can be a minefield. Of course, I'm happy to direct you from the outset!