EDiscovery

It's a new age for small firms and e-discovery—sort of. Cloud-based solutions like Microsoft Office 365 are helping to defray some of the costs of expensive servers or full-time e-discovery personnel in-house. The drawbridge is down and the gate unlocked.

But are some firms are still reluctant to walk through the door? Eric Mandel, a consultant with the e-discovery solutions provider Driven, thinks many of the challenges that existed 10 years ago in getting lawyers to embrace e-discovery continue to persist today.

“I don't think that they've caught on. I think that many of them are still in the ostrich phase,” said Mandel.

People might have begun sticking their heads in the sand a few years ago, when the servers, equipment licenses and other hardware necessary to build a functional data infrastructure system presented a significant expense. Worse still could have been the ongoing payroll cost of the people with the expertise needed to make any of that worthwhile.

Brian Schrader, president and CEO of the e-discovery and digital forensics firm BIA, pointed out that the infrequency with which some small firms fielded cases that required know-how into things like technology assisted review might not have justified the salary of a full-time e-discovery person.

“You might have someone who understands the technology, but unless you're kind of involved in it on a regular basis and keeping abreast of the rapid changes in that kind of technology, it's even hard for somebody to do it on a part-time basis,” said Schrader.

But that is changing. The cloud is making it easier to engage outside vendors for e-discovery services. Aaron Vick, chief strategy officer with the cloud-based legal services provider Cicayda, has noticed an uptick in the number of small firms that approach his company for e-discovery related services, which includes everything from production to assisted review analytics.

He expects to see more interest in the future due in large part to the deluge of electronic information originating from almost every corner of the modern world. Lawyers don't want to make a costly discovery oversight that can cost them during a trial or settlement negotiation, and locating or making sense of all that data can require some specialized insight.

“I think the trend these days is that even small cases tend to have, not a substantial amount of data, but a nuance because of the rise of social media and mobile devices and different communications that did not exist a decade ago,” Vick said.

Ellis & Winters, a boutique firm based in North Carolina, services many clients with recurring e-discovery needs and issues. Alex Hagan, head of the firms litigation group, said that social media is something that they have to consider when doing e-discovery.

“I can't even begin to keep up. That's why I think it's important to have others who are more embedded in the technology that can tell us 'OK this is where we need to be looking, this is what we need to be considering,'” said Hagan.

In addition to working with outside vendors when needed, the firm has also elected to maintain its own in-house e-discovery resources. Hagan declined to go into details on those resources, but said that e-discovery is an area that the firm has been building on for a while.

The benefit of having taken those steps — of not having their head in the sand— is the knowledge they've accumulated over time allows the firm to more accurately predict for clients how much a given e-discovery project will amount to in dollars. It's about providing clients with cost effectiveness as much as control.

“It's like everything else. Good judgement comes from experience. Once you have some experiences under your belt and know what works and what doesn't work and what was effective and what was needed then you're able to forecast that better to the client,” Hagan said.