Shutterstock image

At the end of the search for alternative legal service providers (ALSPs), most of us are familiar with the expression: "To the Victor, Go the Spoils" meaning, the winner gets the rewards. Assuming a thorough process in arriving at our provider selection, priority business needs usually require we onboard (or re-onboard) your corporation's chosen pick as quickly as possible and get back to work. The modern version of this adage might better read: "It's yours to lose," particularly if we don't pay close attention to grooming the field for success. How could this happen? More easily than you think.

In our last article series, we opened the discussion of assessing at what point does a corporate legal department reach critical mass deserving of building, buying or renting e-discovery related software, platforms and service provision capable of addressing your company's global litigation and investigation needs. This article explores how we need to partner/work together with our chosen providers to succeed, with emphasis upon the process of establishing the parameters for effective communication, obtaining critical information at the earliest possible juncture to best serve the client and technical parameters that accomplish goals and ensure the capture of metrics around performance.

After the Final Rose

Dating may have been fun, but we are now trying to build a lasting relationship and that takes actual investment and real work. We see an abundance of companies go through the RFP and sourcing process without a game plan of what to do once selections are made and how they are to integrate the provider into their ecosystem. Most providers sit on the sideline waiting for that direction. Simply expecting your selected provider to deliver tailored service without guidance may not be possible absent the rarest of circumstances. This remains a major industry gap today as concluding the sourcing process only brings us to the starting line with our providers.  It's what we do from there that counts the most.

The best case operational delivery preparedness scenario first begins with establishing transparent communication protocols and designating dedicated working groups to lay out the how, what, where, when and with whom do we begin projects. Best practices to establish these protocols encourage a joint process between the client and the provider and, at minimum, a defined workable process at the client level from which we begin. What are the must haves here?

Baseline protocols should include mutual expectations, workflow flowcharts for project intake, engagement, substantive knowledge transfer (inclusive of data), timeline ranges, resource needs, budget and metrics capture/reporting. Variables and outlier considerations are important to consider at the front end of this process.

Let's dig in. With knowledge management capture top of mind, establishing client and provider working groups should include dedicated defined roles, responsibilities and escalation protocols on both sides from an operational and executive sponsorship level. That way our collective outputs and issue logs for resolution can be maintained much like a distributed networking data model (with no single point of failure to potentially lose evolving protocols and records).

While there's a wealth of information available for effective project management approaches, don't take the simple blocking and tackling strategies for granted. A basis for client matter intake and project communication should include detailed process flowchart(s) for the projects at hand with corresponding explanations of each step in the process, issue resolution protocols and defined stakeholder(s) ownership. This enables anyone cold to the process to dial right in. Think of these as living documents which should evolve both with your programs and project needs.

Where's the Keys to the Car?

Obtaining critical information at the earliest possible juncture imparts responsibility on both the client (who is responsive to enable provider to have everything they need to deliver service) as much as it does for the provider (who is responsible to specify what is needed). What does this mean in real life?

Using regulatory inquiries from the government as a relevant example, data custodian identification, effective data search methodology, culling, review (for relevance and privilege) and production are frequently done under a compressed and sensitive timeline basis. Critical information from the client to the provider requires communicating: the data parameters sought; the elements/nature of the inquiry itself (along with explanation as to any special considerations/sensitivities corresponding to the same); the escalation protocol and expected response turnaround time for client/provider questions; the exact manner in which the production should be accomplished (the "production specifications"); the production deadline, and; lists of names for the privilege log check.

Extrapolating the nature of critical information will obviously vary from project to project, but the constant remains identification and documentation of what is critical to each project from the outset and this is an essential process to stave off later calamities. This holds true in terms of protecting sensitive data from erroneously going out (due to critical information not having been given to your provider), as well as the exponential downstream costs of remediation. Let's call this prevention against the dilemma of trying to put toothpaste back in the tube after the fact.

New Tricks for Dogs of All Ages

There is no question that superior metrics and reporting to that which a client can produce on its own are differentiating factors. All splashy reports and graphics aside, work with your provider to develop metrics tracking and reporting which bring new business insight to the table. What is most important?

For reducing spend, the first thing a company must understand is the true nature of its existing/historical spend for the area in question. Without this, you don't know what to measure success against.

To avoid duplication of efforts in using the example of an e-discovery litigation/regulatory spend analysis, our goal should be the deepest dive possible on obtaining spend metrics. The deeper the dive, the more comprehensive the results. We refer you back to the second article in this series outlining what is needed here, (See: https://www.law.com/corpcounsel/2019/08/26/reaching-critical-mass-in-the-land-of-build-buy-or-rent/) but briefly re-iterate it's crucial to consider partnering with a qualified provider to conduct this analysis (which should cover a year or more of spend/data to accommodate at least one full cycle of business, along with full cooperation/participation of the legal department, IT and InfoSec).

The key here is to have enough end-to-end data to tie exact quantities of data to its corresponding spend over the life of as many matters as possible. Total amount of discovery data is a must to know to establish a baseline of your total project cost per gigabyte of data in any thorough e-discovery litigation/regulatory spend analysis. This can be accomplished through a data survey sent to each provider to determine Gigabytes collected, ingested, hosted, reviewed, produced, etc. against the exact corresponding spend levels on the same.

Even the most sophisticated clients can benefit from a comprehensive spend analysis, given the great likelihood that an independent view will cast light upon key performance indicators (KPIs) not previously identified and/or considered. Further, we can't reduce what we don't know exists so we must step on the scale to know where we need to go. Only then are we truly able to effectively track/report on our KPIs which keep us on the rails forward.

Getting to the Heart of the Matter

Reaching an elevated level as a trusted adviser or partner for the long haul is whole lot more than effectively connecting as business counterparts. It ultimately requires total alignment on the bigger picture of the client's business, how each matter or need fits within this landscape and how to proactively help plan for the business horizon reasonably anticipated. If a mechanic is all that you want, you may be missing a wealth of insight derived from the provider's experience within your vertical or even possibly from experience on your side of the desk. It's easy to overlook this potential but when present it can deliver unanticipated high value-add from a provider's experience with successful business processes/programs and business judgment input with spot on relevance to your vertical.

Next Steps

Don't forget the end of the sourcing process is actually only the beginning of where the rubber meets the road for the work that really counts (and that for which we are ultimately graded). It's up to us to fill the gap from provider selection to operational preparedness. We leave you with the conclusion that any company can groom the field for success with its chosen provider(s), but it requires a committed approach to build the working relationship out of the gate, ensuring transparent communication/working protocols and sharpening the sword for the relationship on an ongoing basis. As a result of this process, we are all better positioned to succeed.

Dan Panitz, UnitedLex VP, Enterprise Legal Solutions, is an experienced attorney based in New York with more than 25 years of combined legal, technology and corporate advisory experience. Having worked with SEC Enforcement and NASD (now FINRA) Arbitration, Panitz also holds anti-bribery and corruption specialty certifications for the PRC, U.K. and the United States.

Bruce (HB) Gordon, is the manager of e-discovery in the office of the general counsel for The Vanguard Group. His career spans over 20 years of ESI response management and as an IT manager/liaison to legal departments including Teva Pharmaceuticals, AmerisourceBergen and the Rohm and Haas Co..