technologyIt has been more than 10 years since the Federal Rules have changed, but the overwhelming issue with many of today's law firms remains how to manage the enormous challenges of e-discovery and how to support their lawyers and clients. Some firms have figured this out with tremendous success, while others think they have. But the majority of firms who must litigate matters under the same set of rules and standards are still struggling. What they know for sure is to stay current in today's legal landscape, they have to find the best solution which fits their long-term business model.

When determining what is best for your firm and your clients, there are a number of factors you should consider on whether a managed services approach to e-discovery is the right one for your firm.

The first question you should ask yourself is, “What is our annual e-discovery spend?” Did you know that over 85 percent of firms cannot answer this question? (This concerns me.) To go about crafting a response, you first must break it down…

  1. If your accounting firm has a code for third-party e-discovery vendors, then you are well on your way. If it doesn't, you may want to consider codes for services such as court reporting, forensics, processing, hosting, document review and trial support.
  2. What is your internal spend on litigation support personnel including overtime, benefits, space and training?
  3. Identify your current technology spend if you have internal technology. Remember to include infrastructure costs, storage space and IT resource support.

This exercise may take a bit of time, but the results will be valuable. Whether or not your firm currently charges its client for any e-discovery services must also be considered along with the utilization and realization of those charges.

Once you've determined your e-discovery costs, your next consideration when thinking about managed services is whether or not you understand the needs of your attorneys and support staff along with the firm culture and its law practice. Many firms go down this road without initiating collaborative discussions with their attorneys, professional staff and clients.

These conversations drive incredible insights and results. You may uncover that some attorneys are not comfortable talking to their clients about e-discovery issues and the support of a managed services provider could be a tremendous asset. You also need to have a deep understanding of your clients' needs concerning data challenges and what position they take with e-discovery and their own document management practices.

The next determining factor for deciding on a managed services approach would be your internal resources. Gone are the days of loading software on a computer never to hear from the end user again. Today's litigation support technology is very sophisticated and needs the daily support of one or more of a law firm's IT professionals. Most often you will need an application and sequel database administrator's support. In most firms, IT personnel are not part of the litigation support department, and it is not high on the list of priorities when it comes to the demands on the overworked IT department. A managed services solution takes the burden off your IT personnel, which will reduce resources overdrive, streamline backup and maintenance routines and shrink overall storage and infrastructure expenditures.

If you currently have internal litigation support personnel that provide a value-added service, then this model is also a good option. However, the personnel must be well versed on the legal discovery process and technologically equipped to understand workflow and process. The reality is that these highly-paid positions have a high burnout and turnover rate in this industry, with the next firm or service provider willing to pay a little more out of desperation. If you do have internal staff that you can train, educate and retain, then that model can work very well, and having a long-term on-site person who understands the likes and dislikes of attorneys' work habits can be an invaluable proposition. But you might want to consider sticking to the core competencies in your firm, which is the practice of law.

Finally, what about risk management? Errors are inevitable in dealing with the complexities of data, security, culling/filtering, privacy and attorney-client privilege, to name just a few of the issues. Who is responsible for the quality control? Are the steps documented? Is the chain of custody maintained? Where do you want that risk to fall?

I often use the analogy that buying technology is like buying a car: As soon as you make the purchase and drive it off the lot, it depreciates. For litigation support technology, there are mounting up-front investment costs as well as ongoing annual maintenance costs to be considered. It's not as simple as choosing a better, faster software package in a few years. One must consider the initial investment in another technology and take into consideration the terabytes of data in the old system that attorneys will want transferred to the new system. These considerations can go on and on with mounting costs.

Choosing the best software to meet your attorneys' needs while remaining on budget is too often never a meetable goal. The right managed services model will provide options to fit your attorneys' needs and cost expectations with technology to support project management and workflow, early case assessment and document review. Managed services can offer your firm the innovation needed to leverage today's client demands while at the same time reducing overhead costs and minimizing risk.

 

Christa Iannone is a senior discovery consultant with The MCS Group (themcsgroup.com) where she counsels corporate law departments and law firms on how to apply a cost-effective solution to every day challenges in information governance, security and e-discovery.