2007 Socha-Gelbmann Electronic Discovery Survey results - So What?

Now that Tom Gelbmann and I have published our revised 2007 Socha-Gelbmann Electronic Discovery Survey results (original LTN article,  corrections and Socha Consulting site) - what do they mean anyway?

Not surprisingly, I have some thoughts on the matter.  I would like to hear what others have to say, but let's start with just one aspect of our survey results - the provider rankings - and tackle Ranking Misconception Number One.

Ranking Misconception Number One:  I need to hire an electronic discovery provider.  I want the best.  All I need to do is choose someone off the Socha-Gelbmann list.

Stop right there and start over.  You do not really want some abstract "best"; you want the best for you in a particular situation.  Here are just a few of the questions you should consider - none of which our lists really answer for you:

• What do you want the provider to be able to do for you?  Do you want a one-stop-shop?  Would you prefer to take a best-of-breed approach?  Do you need someone to help identify potential ESI?  Preserve the data?  Process it?  Put it up on a hosting platform?
• Do you want a one-stop-shop, where the provider functions much like a general contractor?  Or would you prefer to take a best-of-breed approach, where you mix and match providers and server as your own general contractor?
• Does size of provider matter?  Is bigger better, or would a smaller provider be a better fit?
• Do you want a provider that does what it is told and only what it is told, or would you rather have a provider that takes a more consultative approach?
• How much does the provider charge, and how?  How will it fit your budget?
• What sort of project management does the provider offer?  Can you rely on it?  How do you know that?
• What about conflicts checks?  Is the provider already working for the other side?  Is the provider sub-contracting work to yet another provider who is working for the other side?
• Oh, yes - assuming you are with a law firm - what about the client's views on the matter?  Some clients have preferences, sometimes strong ones.  Sometimes a client has a conflicts issue.  And sometimes a client has a strategic reason for using or avoiding a specific provider.

All these are questions you should consider.  None of them can be answered simply by consulting our lists of top-ranked providers.

Comments

[Tom O'Connor]

I agree with George in that there is no "best" ED provider, only "...the best for you in a particular situation." But I do not agree with the concept, which certainly did not originate with George, of the "..one-stop-shop, where the provider functions much like a general contractor".

If I were constructing an office building, I wouldn't hire a general contractor who also had a concrete subsidiary, and a plumbing subsidiary and a roofing subsidiary if he intended to use them on my project. I want a general contractor who can give me independent advice about what professional services to employ without being influenced by his/her own financial considerations.

To that end, I suggest the use of an independent consultant to act as your GC. People like Craig Ball, Mike Arkfeld, Bill Speros, and even George himself are not employed by any ED or lit support vendor
and are well equipped to handle the consultative role of advising you how to best proceed in selecting the proper vendor(s)

[Tom Gelbmann]

In my view the "one stop shop" issue is not a binary choice. Consumers clearly have a choice of engaging a single vendor to do everything, hiring an independent consultant to act as a General Contractor, serving as their own GC, or some other permutation.

The key here is to operate within a comprehensive agreement that is clearly defines responsibilities of each party. Effective project management principles can then be applied to manage those responsibilities toward a successful conclusion.

Using the construction example posed by Tom O'Connor, if I hired a GC to build an office building and the agreement with the GC clearly states the GC has responsibility for all aspects of construction - quality, cost, completion schedule, etc., it would not matter to me who does the plumbing and roofing.

That being said, it may be useful and in some cases advisable to engage an independent consultant to advise on the selection of service and/or software providers as well as for the construction of an effective engagement agreement that clearly defines responsibilities and consequences of failure to deliver. Of course, in some situations depending on the size of the case it may be cost prohibitive to engage independent consultant. Or, there may be considerable experience and confidence with a particular provider that would not justify an additional layer of management.

[Scott Jones, EnCE]

I echo Tom's sentiments regarding the use of vendors who are not "one stop shops." There are some ED & forensics vendors who claim to be both, but in reality, they only have the capbilities for one and farm out the remainder. Some might consider this fraudulent advertising at best.

Firms that specialize in a service tend to offer deeper understanding and excellence in that craft. I, for one, will never go to a cardiologist or surgeon who does not specialize in that field of practice.

What is further questionable is the conflicts check issue mentioned by George Socha. I have encountered times where a vendor was selected allegedly because someone who was a partner at the firm owned equity in the vendor or where a relative of the attorney was employed for the vendor.

This can become increasingly important when the vendor being considered is under consideration as a neutral expert. Such double dipping undermines the neutrality of an expert.

Increased disclosure requirements on the parts of attorneys might be one avenue to prevent any such abuse of trust. Were attorneys required to attest that they have no such equity or relationships to any case which they are actively billing as a legal practitioner or counsel, this would be a good start.

Of course, we could write whole treatises on such issues, I imagine.