e-Discovery Stage 2: Understand the Risk Profile

Today’s theme is covering the aspects of how to make this type of project successful and and frictionless for all involved parties. Understand that it is your job – not legal’s- to be adaptive as far as process goes. The following rules are essential for project kick-off and administration:

  • Rule # 1 – You need to be as non-disruptive as possible to Legal’s deliberative process and you must demonstrate complete and utter discretion.
  • Rule # 2 – You need to understand how the multi-billion dollar E-Discovery market works.
  • Rule # 3 – You need to know what questions to ask Legal.
  • Rule # 4 – You need to know how to communicate with the various principals in Legal in a way that is meaningful to them.

A simple recent case study shows all 4 principals at work.

Before we start, it is worth pointing out that from any company’s perspective E-Discovery can rear its head in a number of ways including, but not limited to, all categories of litigation, M&A activity that attracts scrutiny from federal regulators, internal investigations, as well as governmental and regulatory investigations.

In this particular case study, “Company A” was faced with an E-Discovery challenge. As is often the case around the country every day now, Legal was abruptly faced with a need to identify, locate, preserve, defensibly collect, and ultimately have attorneys review ESI involving a significant number of employees.

Based on initial interviews with IT staff, Legal gathered some initial metrics which they then used to solicit (via their outside law firm) bids from three E-Discovery service providers. Those bids ranged between $500K and $2M. In addition to the heartburn-inducing price tag, there were many moving pieces to deal with and understanding what value each service provider delivered, as far as helping mitigate the overall legal risk, was not something the was readily apparent. Thankfully, this opened the door for some sourcing best practices to bring value into the fold. It also presents extreme FUD which snuffs out the competitive sourcing flame to those not ready to address it properly.

The engagement team (“the team”) met with Legal to triage the challenge. The team listened to Legal explain the problem in their words and teased out from them what deliverables they needed. The team then interviewed IT and nailed down as many specifics as were available as to the nature and quantity of the ESI media. Again, as is frequently the case, the media consisted of a combination of all kinds of media; hard drives, backup tapes, and DVDs containing zipped network files etc.

With a full understanding of what the sourcing needs were as well as a firm timeline, the team went to work on sourcing this E-Discovery event.

Step 1: Using the information gleaned from interviews of both Legal and IT personnel, a RFx survey was constructed. Respondents were required to answer several dozen targeted questions covering everything from their company’s general info to their corporate liability policies to hard core technical questions to sample reports to training material – the Full Monte. The technical questions posed were directly responsive to the technical needs as articulated by IT. Further, there were several sections of questions which drilled down into the granular (and tricky) technical issues which were directly responsive to both Legal and IT’s articulated concerns.

Step 2: The team assembled a line item schedule that was anchored by the hard units known to be in the possession of IT. Rather than allowing service providers to submit their own line items (which varies from vendor to vendor making apples to apples pricing comparisons virtually impossible), all the service providers were required to conform to a unified line item schedule. They could bid whatever they wanted – they just had to do so in a uniform environment that leveled the evaluative playing field.

Step 3: The team worked with Legal and outside counsel to identify an appropriate pool of service providers that would be invited to the sourcing event. 10 E-Discovery service providers were ultimately invited.

Step 4: The invited service providers were given 5 business days to respond to the RFI.

Step 5: Once the service providers submitted their respective RFI responses, the team remotely collaborated with Legal on the line by line comparative evaluation of each service provider’s response.

Step 6: At the same time the evaluation team got to work on the RFI responses, the service providers were then given access to the sealed bid event and given another 48 hours to submit their bids based on the line items approved by Legal.

Step 7: All 10 RFI responses were evaluated in the same 48 hours window as the bidding was taking place and within 20 minutes of close of bids, the entire Due Diligence package was sitting in Legal’s and outside counsel’s inbox.

From the moment the engagement team was pulled in to the time the Due Diligence package was submitted was less than 2 weeks. This is one of the primary benefits of eSourcing – efficiency and sourcing automation. This compression in cycle is a fantastic benefit, especially relative to the traditional means of this category. But wait – there’s more…we did not stop the process at the RFx stage.

Still quiet here.sas

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