Electronic Discovery Vendor Selection: 4 Questions with a Veteran Lawyer

Expert Perspectives: This article features an interview with veteran attorney Stephen Embry of TechLaw Crossroads.

Legal technology: Transparency increases effectiveness

Q: Most legal teams today are being asked to do more with less. They are increasingly relying on legal service providers to deliver eDiscovery services – from forensic investigation and data collection through processing, analysis and document review – efficiently so they can focus on more critical tasks. But not all eDiscovery service providers are created equal. How should a savvy legal team approach the process of evaluating legal service providers?

A: There is growing transparency in the legal service provider evaluation process. It’s much easier to get information about a provider by doing internet searches, reading reviews, finding others who have used the provider and the like. In the old days, you would go on reputation or whether you had some sort of connection at the firm or provider you were evaluating. It was much the same way that clients hired lawyers. It was not a very effective way to get at the real information you needed.

I think data analytics and machine learning are going to play an even greater role in the future of law and eDiscovery.

Choosing an eDiscovery provider: What lawyers need to know

Q: What are the key components of a thorough service provider evaluation? Are there any court opinions lawyers should review when it comes to due diligence in selecting eDiscovery vendors?

A: While there are not a lot of court opinions, there are a number of ethics opinions dealing with this issue and which offer practical advice. In May of 2017, the American Bar Association came out with Opinion 477 which discusses a lawyer’s duties with respect to outsourcing vendors generally. The ABA suggests lawyers have a duty to investigate cloud and outsourcing vendors and look at things like:

• The qualification(s), competence, and diligence of the provider
• The provider’s reputation & longevity
• The contractual protections being offered
• Data ownership: Who owns it, and importantly – who is responsible for its protection?
• Procedures for the return of the information
• What emergency procedures are in place
• How the vendor plans to respond to subpoenas

The lawyer should also do reference checks and review vendor credentials, look at the vendor’s security policies and hiring​​ protocols, and make sure the confidentiality agreements are adequate.

In: Legal technology fluency. Out: Legal technology jargon.

Q: How has the evaluation criteria changed over the course of your career? Any guesses on how it will change for the next generation of lawyers?

A:   Technological competence is the key driver these days. The provider must be able to harness the technological tools and have a true understanding of how they work so the lawyers can know what the tech will do and can do. Things change dramatically during the course of a lawsuit or matter, especially during trials, so it helps to have a vendor who can go with the flow and find solutions with workarounds. It also helps when the vendor can speak in ways that the lawyer can understand and not resort to confusing or ambiguous technical jargon. And the lawyer has some responsibility too. A lawyer needs to be technologically competent enough to supervise the provider and generally evaluate them. This requires some tech competence as well.

In the future, I think data analytics and machine learning are going to play a greater role. The best vendors will be the ones that can leverage these learning tools and then offer advice at the very top end of the problem pyramid. Again, managing to the exception.

Advanced eDiscovery tools gain widespread acceptance

Q: In the past, some technological tools were looked at warily by the U.S. judicial system. How do you convince your clients – who are very cautious and cost-conscious – to adopt more sophisticated eDiscovery tools, such as technology-assisted review, etc.? What are the best practices associated with the soft skill of persuasion?

A: This used to come up a lot but less now. I think with most clients it’s a dollars and cents proposition: Here’s how much it will cost if we do it manually, here’s how much it will cost if we use the various eDiscovery tools. Most clients today see it really quickly; in fact, clients more and more expect and demand that their lawyers access these kinds of tools, and won’t hire you if you don’t use them. It also helps to bring into the room the technologists, IT people, and process management folks when these cost and strategy discussions occurs. All too often, the lawyers will try to carry the ball and either over-or under-commit what the tools can and can’t do. That’s inefficient and leads to frustrations down the road. Lawyers need to get over the idea that they know everything.

About Stephen Embry: Stephen Embry is a lawyer who practiced as a partner for nearly 30 years. He is the author of the TechLaw Crossroads blog, covering the intersection between technology and innovation and the law and the practice of law. He is a national litigator and advisor specializing in developing solutions to complex corporate litigation problems. He is co-chair of the ABA’s Legal Technology Resource Center, Chair of the Kentucky Bar Association’s Law Practice Task Force, and Webinar Chair and Steering Committee member of Defense Research Institute’s Law Practice Management section. He is Chair of the Data Breach, Privacy, and Cyber Insurance Section of the Federation of Defense and Corporate Counsel. He holds the Federation of Defense and Corporate Counsel (FDCC) certification of Technology Master Advocate.