Editor’s Note: A version of this article originally appeared on the Control Risks site. Control Risks is a global RelativityOne partner.
Today, e-discovery is not just a technical process; it is a strategic function that can minimise risks and significantly impact an organisation’s legal outcomes, costs, and overall operational efficiency. In most cases, organisations leverage e-discovery on a matter-by-matter basis. In doing so, companies are missing opportunities to unlock a wealth of benefits that go beyond advantageous pricing for collecting, processing and hosting data.
With data volumes and varieties continuing to expand and digital information increasingly seen as the lifeblood of businesses, the need for effective e-discovery solutions has never been more critical. In-house counsel and compliance teams need to navigate the complexities of litigation, investigations, and regulatory compliance demands. Establishing a managed e-discovery services program with repeatable and defensible processes and consistency in tools and support methodologies can be a game-changer in reducing risks, streamlining operations, and controlling costs.
Who Benefits from a Managed e-Discovery Services Program?
You might think that a managed e-discovery services program is only for Fortune 500 companies, those in highly regulated industries, or organisations with dedicated headcount to operate e-discovery tools. This is not the case. Pay-as-you-go and fully outsourced offerings allow companies of all shapes and sizes to realise the benefits of centralising their data, leveraging consistent technology and workflows, and applying these methodologies across their litigation, investigative, compliance and cyber use cases.
For most, managed e-discovery services means outsourcing all data processing, hosting, analytics consulting, review, project management, and production support to a preferred partner. For others with more robust in-house capabilities and larger e-discovery teams, this could be leveraging a technology partner’s buying power for data hosting with a more DIY approach to collections and e-discovery. Many are somewhere in between with a hybrid program handling smaller matters internally while larger, complex matters use a dedicated technology partner team, or data preservation and collection is managed internally while downstream e-discovery is supported externally.
Whether facing a surge in data volume or navigating complex cross-border legal requirements, a managed e-discovery services approach can adapt to meet the evolving needs of the organisation and variable nature of data volumes and e-discovery requirements. This leaves counsel to focus on strategic priorities without being bogged down by operational challenges.
Applying the Best Technology and Processes When and Where You Need Them
A formal managed e-discovery services program provides consistency and continuity in terms of access to cutting-edge technology, and related digital forensics and e-discovery expertise.
One of the primary misconceptions companies who do not leverage a managed e-discovery services model have is the lack of in-house technology support. Without deep expertise in-house, organisations need access to in-depth knowledge of the latest e-discovery tools and methodologies. They will also need help developing custom tools and features to meet the current and future needs of unique and proprietary data systems, and emerging sources and formats.
When considering a managed services approach, organisations need to be realistic about how outside counsel can help them leverage the most advanced solutions. How can they best position everyone involved to minimise data volumes, streamline review workflows with analytics, and handle any custom development needs that may arise across their portfolio of matters?
A Key Benefit: Cost Predictability
As previously alluded to, a formal e-discovery program can provide cost predictability and transparency. Significant cost-savings can be made when compared to more transactional relationships.
For heavily regulated businesses and in-house teams with busy litigation dockets and e-discovery expenses, fixed fee models and multi-year commitments can provide aggressive pricing and flexibility in expenses management – including data charges and hourly support.
For companies that have an unpredictable litigation portfolio, opting to pay-as-you-go may be the better choice while still benefiting commercially and operationally by organising your data in a single platform with a preferred partner. By establishing a clear pricing structure and service level agreements with a technology partner, counsel can reduce e-discovery spend, avoid unexpected costs, and ensure that their e-discovery budget is allocated efficiently.
Using e-Discovery to Enhance Risk Management
Beyond these commercial benefits, a formal managed e-discovery services program can also mitigate risk and enhance compliance. With data privacy and security becoming increasingly complex and stringent, clients should evaluate the landscape of global e-discovery providers that can help navigate these challenges, ensuring your counsel can meet their legal obligations and protect their organisation’s reputation. Consider partners with data centres globally so legal teams can keep data within specific regions (Europe for EU’s GDPR and/or mainland China for state secrets, cybersecurity, and PIPL) to comply with data privacy regulations. Additionally, the use of a centralised platform and partner naturally improves information security management by eliminating data sprawl.
Centralising your e-discovery portfolio also allows discovery consultants and project managers to become true experts in your data and workflows. Project managers can work with legal teams to identify trends in your data and programmatically identify non-substantive data in collections and eliminate these from review. Project managers can also work with legal teams to develop analytics workflows that truly suit the needs of your portfolio—eliminating a one-size-fits-all approach to analytics workflows and driving efficiencies and cost savings. Data centralisation also allows reuse of active learning models across matters with similar relevance criteria, including employment matters, instead of using valuable subject matter expert time training a new model. This allows legal teams to start review one step ahead.
Having data centralised also allows for deeper analysis into your data, and enhanced dashboarding capabilities. Portfolio-wide reporting allows your team to quickly identify data trends, including data volumes, review and production metrics, and project management support. These insights can be further broken down by business line or type of litigation to allow for more accurate budget estimates for new matters.
Considerations for Adopting Managed e-Discovery Services
Establishing a formal managed e-discovery services program is not just about hosting data, it’s about unlocking strategic value. If you are contemplating a change to managed e-discovery services, we would recommend you consider the following:
- Talk with your counterparts in litigation, compliance, security, HR, and legal operations to understand what e-discovery tools and partners are being leveraged by the company.
- Identify all the third parties who have your most sensitive data in the context of disputes, investigations, and compliance matters, e.g., law firms, services providers, and consulting firms. Tabulate your e-discovery spend over the past 12-36 months.
- Assess whether you have a steady stream of e-discovery needs or an unpredictable cadence of matters across the enterprise. Ascertain if an upfront financial commitment or a pay-as-you-go model makes the most sense for your company.
- Evaluate managed e-discovery services providers who have a global reach that aligns with your company’s footprint. Who can fill gaps where you require external support, e.g., from data collections and processing to analytics, project management, review, and production?
- Think about future state in terms of your data sources, new data formats for discovery, and innovation that is currently underway within the enterprise. You will require a technology partner that can evolve with your organisation and tackle ever-evolving data challenges with a mix of best-in-class software and custom development capabilities.
Brad Kolacinski is a partner with Control Risks and leads the Forensic and eDiscovery Technology practice in the Americas.
