Do-it-yourself eDiscovery is possible, but not easy. How much your legal team can handle on their own depends on many factors, such as available resources, flexibility, support, risk, and time. Hybrid solutions and the latest eDiscovery platforms can give experienced legal teams more autonomy. However, maintaining an outside line of support for particular data challenges or matter types can help manage workload and mitigate risk.
EDiscovery projects require companies and law firms to balance conflicting objectives. On the one hand, organizations need to respond to requests for production as promptly and cost-effectively as possible. On the other hand, cost-cutting and practicality cannot interfere with the need for a thorough and defensible eDiscovery process. In other words, eDiscovery must be done economically and rapidly, but it also must be done defensibly. To help determine whether bringing eDiscovery in-house might work for your organization – or not – here are some steps to take:
Weigh Your Options
A number of legal technology solutions on the market assert that companies and law firms will be able to conduct the entire eDiscovery process internally. In reality, sometimes the technology delivers; sometimes it doesn’t. Organizations must vet the technology in conjunction with the processes that might be brought in-house when determining whether to do it yourself, outsource, or combine both.
Consider the Costs
Conduct a cost-benefit analysis based on the process you currently have in-house. Although it can be overwhelming to look at the entire EDRM and try to do a cost-benefit analysis on every process, if you’re a corporation or law firm doing legal holds but not collection, that’s where you should begin. Once you perform an end-to-end analysis of what you want to bring in-house, you can focus your cost-benefit analysis on that.
Look at the Big Picture
Ask yourself, “Is there a tool we could use for one purpose that would also help other departments?” Don’t focus on just your team. Instead, widen your cost-benefit analysis to include fact-finding regarding whether other departments or teams might use the solution that you’re contemplating. Some considerations to make when thinking about insourcing your eDiscovery process: the company’s existing data infrastructure, cybersecurity posture, and whether you’re investing in the cloud.
“It’s about setting expectations. If you do your collections in-house, you must let your outside counsel know how long it’s going to take. If you rely on a third-party managed service provider to do the review, you will want to have them coordinate with outside counsel. It’s knowing what your team can do, what your team can handle, how much capacity you have, and just being mindful, being a good team leader, realizing if people are getting overwhelmed by the work, and then considering, ‘Do we need to change who does what? Do we outsource more, or do we need another headcount?’”
-Mira Edelman, senior corporate counsel at Dish Network L.L.C.
Determine Your Desired Level of Control
An essential benefit to DIY eDiscovery is control. DIYers typically have ultimate control over their data using one platform to conduct processing, filtering, review, and production. An effective DIY tool will include real-time reporting and metrics, functionality, a seamless transition across the EDRM, and will support matters of various sizes and complexities. Because no two eDiscovery projects are the same, the flexibility and functionality of any DIY solution are critical.
Create a Playbook
When talking about control, you’re also talking about scalability, building out workflows, and the risks involved with bringing eDiscovery in-house or outsourcing it. You can define all that in your eDiscovery playbook – a continuously evolving document that describes an organization’s approach to preserving, collecting, processing, reviewing, and exporting data. As you begin the playbook creation process, you will identify gaps in your workflows that you can improve and build on. When you craft your playbook, make it practical, tweak it as you go, and update it as necessary.
Profit Center or Cost Recovery
If you’re on a billable model, you need to generate profits. But will you keep that billable model and build data charges on top of that, or try to incorporate some of the costs of DIY eDiscovery into static pricing or a data charging fee? Is your firm handling pro bono or internal matters where clients won’t want to pay for your eDiscovery services? Can you account for the dead space in your environment but still build a profit center?
Assess Staffing Needs
If you’re planning to DIY eDiscovery, who are the people you will need to add to your team, and what skills will they require? One of the benefits of an outside provider is that they typically have access to a wide range of people experienced across a broad range of tools. Outside providers also typically have offices in different time zones and overnight shifts that allow for round-the-clock services and support. If you’re insourcing eDiscovery, you must make sure that you are staffing effectively. Otherwise, you could quickly become overwhelmed or unable to perform the needed services. Without adequate staffing, you could soon fall back to an outsourcing model.
Insource, Outsource, or Hybrid?
So do you want to manage all, none, or part of your eDiscovery process? Do the purported benefits of conducting eDiscovery in-house outweigh the advantages of outsourcing – capacity, expertise, and resources? As an organization, you must decide. Even if you have a large and talented team who ingests and processes data and routinely manages review, you still might have some burst capacity and technological needs. That’s where partnering with a service provider can provide an option for a hybrid eDiscovery model.
CDS Advisory Services brings together consultants and technical experts to support clients throughout the eDiscovery process and with their legal technology needs. To discuss how we can help you meet your organization’s unique challenges, contact us for a consultation today.
