By Dennis Kennedy, Evan Schaeffer and Tom Mighell
Dennis Kennedy (DK): Tom and I recently attended the LegalTech conference in New York. Not surprisingly, we spent a lot of time visiting with and learning about the electronic discovery vendors there. By some counts, e-discovery and litigation technology vendors comprised almost a third of the vendors. I’ve been hearing consistently lately as many as five thousand (5,000) companies describe themselves as being in the e-discovery sector. It’s no wonder we get confused and feel overwhelmed. Or maybe I’m the only one who feels that way. How about you guys?
Evan Schaeffer (ES): 5,000 companies? Wow. Since one of our themes in these columns has been the reluctance of many lawyers to embrace e-discovery, it makes me wonder how all those companies are managing to keep busy. Or are more lawyers embracing e-discovery than we thought?
Tom Mighell (TM): I’ll be the one to say that many lawyers are still not embracing e-discovery. I think the explosion of EDD companies comes from the need to be competitive. I know a number of companies in Texas that used to be called “copy services” — but during the past year they have re-imagined themselves as providing e-discovery services. Unfortunately, many of these companies probably don’t know as much about EDD as they should.
(DK): It’s also reasonable to expect that we’ll see some shakeout and consolidation among the e-discovery vendors. If it’s confusing now, I expect it to become even more confusing in the short term. Perhaps by the end of 2006, we’ll see the overall picture come into better focus. You’ll definitely want to monitor the new stories to see what develops. Who would have thought that monitoring what is going on with the companies might be as important as learning about their product and service offerings?
(ES): If there’s going to be a shakeout and consolidation, it’s all the harder to choose an e-discovery vendor. No one wants to get into the middle of a big project only to learn that they’ve hired an e-discovery vendor that’s about to get lost in a reshuffling. I think I’d be looking for firms with a history and proven track record, at least until we see who’s still standing after the shakeout and consolidation you’re predicting.
(TM): I think that’s right — there are a good 10-15 companies that are well-known in the industry that would be good choices — except maybe for some solo and small law firms. Maybe your best bet would be to hire an EDD consultant who has an eye on what’s happening among the companies, and who can recommend the best fit for your firm and the particular electronic discovery project.
(DK): Well, I’ve concluded that you actually have to develop some strategies and some tactics to learn about this industry and what you need to do. First and foremost, you really want to educate yourself about the industry, who the players are and, most important, what they do best. Unfortunately, I have not found this to be an easy process.
(ES): There’s just such an overwhelming amount of information. That’s why a proven track record is so important to me. If I’m looking for a vendor for a new project, I can rely on the ones I’ve used in the past or, failing that, use one I know has handled a project similar to the one I’m facing. I hope I don’t sound too cynical, but it saves me from having to wade through all the puffery on vendor websites. I’d much rather rely on personal recommendations.
(TM): I’m the same, but as you know, our firm still has yet to receive an electronic discovery request. When that first request does come in, I have a short list of the companies that I will call, but I have to admit I’m still overwhelmed by it all. Are there companies that are a better fit for my firm out there, and I just don’t know about them?
(DK): As Tom knows from being around me at LegalTech, I get frustrated by the number of vendors who say that they are “full-service” e-discovery companies. While there may be a few companies evolving into that category, I’m not convinced anyone is a truly “full-service” provider in this category. I’m always asking companies to level with me and tell me what they do best. With patience and persistence, I can get them to tell me. My free advice to everyone in the industry is that the phrase “full-service” needs to be banished for a while and more effort dedicated to educating the market about what options they have.
(ES): Too bad those companies probably won’t take your advice, thinking that dropping the “full-service” label might give their competition a leg up. What they don’t realize is that lawyers are drawn to firms that tout their strengths in a way that differentiates them from the rest of the pack.
(TM): I have two different takes on this — I think that several of the biggest EDD companies can probably get away with calling themselves “Full-Service” providers; now whether they can adequately provide all of those services is another question. But interestingly, my experience in meeting with vendors lately has been exactly the opposite — so many of them provide “niche” service providers, offering one particular service; I’m having trouble keeping track of all of them.
(DK): Let me back off just a bit from my position about full-service providers. I am intrigued by the idea that some providers can become “e-discovery general contractors.” Much like when you build a new house or put an addition on your house, you hire a general contractor who selects the carpenters, electricians, plumbers and other skilled laborers. You rely on the experience and expertise of the general contractor. I can see the same thing happening, over time, in e-discovery.
(ES): That’s a good model. Rather than trying to get your mind around the entire field yourself, you can rely on a trusted expert to do it for you. It’s the “trusted” part of the equation that’s most important. Finding an expert seems easy, but finding an expert you can rely on? Now that I think about it, I haven’t had much luck with building contractors either.
(TM): Both of your responses raise a question for me — is the “general contractor” an e-discovery provider or a consultant — or could it be either? I’d almost rather have a consultant to help select e-discovery providers — someone who can (hopefully) objectively tell me which providers would be best for my particular project. On the other hand, a vendor might have business arrangements with “subcontractors,” which might lead to less impartial recommendations.
(DK): I really want to emphasize that finding and evaluating vendors is difficult and confusing. Our message in this column is that if you feel confused, there are good reasons for that, and that the e-discovery vendors should be focusing on educating the market. It should not surprise anyone that I like the educational approach Fios has taken with the DiscoveryResources.org site on which this column appears. What other resources do you guys like?
(ES): I have a number of places I visit from time to time in order to get educated. I favor the sites where I can tell at a glance that the information is being provided objectively– that is, not as part of a sales pitch. It’s not that I mind the sales pitch, but I don’t like it when it’s disguised as something else.
(TM): I second Dennis on DiscoveryResources — I subscribe to the RSS feed, so I am kept up-to-date on the latest EDD articles that are published on the site. I also read e-discovery articles on Law.com’s Legal Technology page (www.law.com/jsp/ltn/index.jsp); many of those articles, and others, can also be found in Law Technology News.
(DK): The best tactic I can think of is to break the e-discovery process into its components and stages. George Socha and I wrote an article which we broke the process into eight separate, but related, stages. You can find it at www.discoveryresources.org/04_om_electronic_discoverers_0411.html. Break the process into the steps that make sense to you. Then, evaluate your needs in each stage and create a shopping list and checklist for questions to ask vendors. You really want to, as lawyers like to say, “compare apples to apples” when finding and evaluating tools and services.
(ES): E-discovery projects can often seem completely overwhelming. If it’s not enough that the terms and concepts are often difficult and unfamiliar, there’s the cost component too–whether you’re getting all the value you can from each dollar you spend on e-discovery.
(TM): And that’s where having a “general contractor” can really come in handy. Comparing “apples to apples” can get confusing; if I’m evaluating different tools and services, I may find that there are 4 or 5 vendors that fit my needs. A general contractor or consultant who really knows the difference would be helpful in telling me the best service for that particular component, both in terms of cost and service.
(DK): I want to mention two practical tactics that every lawyer should be considering. The first is looking for interoperability in whatever products and services that you select. You want to move data in and out of the different software and services you use, and generally to share the information you have between the programs you use. As an example, CaseMap and perhaps twenty other programs allow you to use a “Send to” menu item to easily move information between programs. That will give you a lot of flexibility even if there are many changes in the industry.
(ES): Being able to port data from application to application is essential, as is retaining the data in a format that will continue to be easily accessible. I speak from experience. Even now, I have a lot of data specific to ongoing cases–generally, mass torts that have been going on for years–that I can’t get to without firing up old computers. While ten years isn’t a long in the lifetime of some mass torts, it can be several lifetimes for computers. If I don’t find the time to convert some of that old data into a format that’s at home on my new machines and applications, I’m going to risk orphaning it completely.
(TM): I think that as time goes on, more and more applications will be offering this type of interoperability — we’re definitely seeing a lot of service providers who recognize the value in being able to work with other applications. This will in turn build goodwill with the consumers who buy the product. I am never happy when a vendor tells me that their software won’t play with the other software I already have.
(DK): The second practical tip I want to mention relates to an area that many law firms simply do not pay enough attention to. That’s reviewing the software licenses and services contracts they sign. They will want to learn what acronyms like SLA (service level agreement) mean and have a good understanding of what is going on in the contracts they sign. They will especially want to consider exit strategies, termination provisions, confidentiality, and all terms covering the return of data and transition of data to other service providers. Watch out for “standard” contracts.
(ES): I definitely fall into the “don’t pay enough attention to it” category. But I promise to start now. And I’ll know where to turn next time I’m confused about an SLA.
(TM): Licenses? Contracts? Huh? Seriously though, Dennis — what do you mean when you say “standard” contracts? How’s the average lawyer to know what a “standard” contract for e-discovery services means? I suspect the answer may lie in that consultant I have been mentioning throughout this discussion.
(DK): Let’s save those questions for another day. We learned a lot at LegalTech – mainly that there’s a huge amount left to learn. Tom and I wanted to say thank you to Julia Wotipka and Mary Mack of Fios for their hospitality and treating a group of lawyer bloggers (including Tom and me) to a great breakfast at Norma’s. They did require that we not order the famous $1,000 omelet at Norma’s. We missed you at that breakfast, Evan.
(ES): You knew I would have wanted that omelet. As I always say, no price is too steep for a good egg.
(TM): Well, no omelet should have caviar on it, either 
The breakfast was great fun — no one should miss a breakfast at Norma’s if they are in NYC.
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Dennis Kennedy (dmk@denniskennedy.com) is a well-known legal technology expert and technology lawyer based in St. Louis, Missouri. An award-winning author, he has written extensively on electronic discovery and other legal technology topics and also speaks frequently on these matters. His website (www.denniskennedy.com) and blog are highly-regarded resources.
Evan Schaeffer (eschaeffer@riverbendlaw.com) is a class action and mass torts lawyer based in the St. Louis metropolitan area. His firm is Schaeffer & Lamere, P.C. Schaeffer’s weblogs are The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.
Tom Mighell (tmighell@swbell.net) is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson, P.C. in Dallas. He is the author of the Internet Legal Research Weekly, and the Internet research weblog Inter Alia, an Internet legal research weblog.
Filed under From the Experts.