Page 26 The Metropolitan Corporate Counsel January 2011
Taking The Value Challenge Beyond Law Firms And Clients:
Making Your Electronic Discovery Providers Step Up
Jon Resnick 4. Communicate well… and often tively suggesting alternatives, e-discov-
One of the particular challenges of ery providers can demonstrate their
APPLIED DISCOVERY electronic discovery projects is their willingness to try new approaches. In
tendency to ﬂuctuate in size and scope addition, e-discovery providers should
with frequently changing deadlines. A be open to client suggestions in this
Even before the economy deterio- judge may set a new deadline, or the area.
rated, the Association of Corporate team may ﬁnd that it makes sense to 8. Use good technology, and use it well
Counsel began seriously examining the adopt rolling deadlines as discovery As technology has exploded, organi-
value relationship between law ﬁrms evolves. By communicating frequently zations are struggling to keep pace with
and their clients. Since the ACC Value
with attorneys and other key stakehold- the volume of data and information that
Challenge program’s ofﬁcial launch in
ers, e-discovery providers can allow the is now discoverable. So it’s time to turn
September 2008, the ﬁnancial struggles
client to adapt to the new schedule or technology to the advantage of the
of many law ﬁrms have only intensiﬁed.
make decisions with as much notice as client by leveraging technology to the
In this environment of corporate ﬁscal
possible. extent practicable. Electronic discovery
duress, the core ideas behind the Value
5. Bill transparently providers can bring a unique value here,
Challenge continue to resonate, high-
E-discovery providers should have since many law department and law
lighting the disconnect between the
transparent billing systems and ﬂexible ﬁrm attorneys don’t have the time to
value and cost of legal services and pro-
billing practices. For example, rather become experts in cutting-edge, discov-
moting the belief that law ﬁrms can
Jon Resnick than simply telling clients how they will ery-speciﬁc tools. Automating when-
improve the value of the services they
be billed, e-discovery providers should ever possible is one way to greatly
offer while reducing costs … and oper- vagaries of a jury, represents one of the work with clients to customize an increase efﬁciencies. New early case
ating at proﬁt. great unknowns. What isn’t in question approach. For some clients and some assessment tools can substantially
Those law firm profits remain a
is that the costs are high. According to matters, a per-document rate may work reduce the size of the data set required
major sticking point for corporate legal
the 2010 Socha-Gelbmann Electronic better, while others may prefer a per- for document review. “Review analyt-
departments and the organizations they
Discovery Survey, the value of the e- gigabyte or even an hourly rate. ics” can further speed and lower the cost
work for. The ACC cites a statistic from
discovery market in 2009 was about of document review by tracking the pro-
the California Bar Journal: in the last 6. Improve efﬁciencies
$2.8 billion, a 10 percent increase from ﬁciency and efﬁciency of the review
10 years, non-law firm costs have When rethinking their value proposi-
2008. And according to the survey, costs team – and individual reviews – in real
increased by 20 percent. During the tion, e-discovery providers must keep in
for e-discovery were set to rise between time.
same period, however, large law ﬁrms mind that the goal is getting the job
have increased their rates by 75 percent. 10 percent and 15 percent in 2010 and While most of the talk about the
done as efﬁciently and cost-effectively Value Challenge has revolved around
The Value Challenge takes aim at 2011.
By demanding clear budgets and as possible. So it’s important to always law ﬁrms, e-discovery providers are
that disparity by urging attorneys at law seek efﬁciencies and ways to lower
ﬁrms and legal departments to funda- estimates early on, or as soon as practi- perfectly positioned to create their own
cal, in-house counsel can be sure they costs – and proactively present these unique value propositions, and corpo-
mentally rethink their relationships suggestions. Like a law ﬁrm, e-discov-
based on the value that the client ulti- understand the scope and cost from the rate counsel should demand that they
beginning of a lawsuit or investiga- ery providers can sometimes gain from do. Providers have extensive experience
mately receives, rather than an hourly inefﬁciencies. Counsel should continu-
rate, cost per project or the ﬁrm’s prof- tion.The more detail providers can offer, and knowledge of discovery, and clients
the better the quality of the decision- ously demand – and providers should should be the beneﬁciaries. However,
itability (see sidebar). proactively suggest – better processes
“Value from the corporate perspec- making by in-house counsel. For exam- the dialogue cannot be one-sided. It’s
ple, a client faced with potentially large and tools to lower overall costs. important to discuss and brainstorm
tive means receiving a solution that
expenses for an e-discovery matter may 7. Suggest alternative fee structuring with everyone involved, from in-house
addresses the client’s problem – for an
decide it is cheaper to quickly settle, Many in-house counsel tire of being counsel to IT staff to law ﬁrm attorneys.
appropriate cost,” said Association of
rather than slog through discovery only the ones to ask providers for alternative By being open to new ideas and
Corporate Counsel GC Susan Hackett
to settle later on. fee arrangements and other ways of approaches, e-discovery providers can
in an American Lawyer interview.
2. Hire the experts structuring billing and work. By proac- truly tackle the value challenge.
The realm of e-discovery, like that of
all legal services, requires a re-evalua- Offering in-depth knowledge and
tion based on the ACC’s cost-value expertise is another way that e-discov-
equation as an “appropriate cost,” ery providers can demonstrate value. Covenant With Counsel
which has not traditionally been associ- Many in-house counsel, particularly at As part of the Value Challenge, the Association for Corporate Counsel has
ated with the discovery process. A smaller legal departments, act as gener- created the “Covenant with Counsel.” Highlights include the following: we will
dreaded budget line item, discovery has alists. They know a little bit about a lot • Learn your business and strategic objectives and apply that understanding
a reputation for being unwieldy and of different areas of the law. Counsel to your matters.
inconvenient, with the potential for should be able to rely on e-discovery • Give honest feedback on whether your objectives in a matter are realistic
costs to spiral out of control. This is not providers to help ﬁll the knowledge gap and attainable.
without merit, as many cost-drivers by offering education and explanations • Use the most appropriate stafﬁng and tell you if we don’t have the needed
(time, technology, supervision) are regarding the latest trends and court rul- expertise.
compounded when managed internally ings in the discovery realm. • Designate one lawyer to serve as our relationship manager, whose time
by legal teams not accustomed to the 3. Prioritize project management will not be billed for this role.
discovery process or by external ven- Solid project management can make • Proactively offer value-based alternative fee structures.
dors adding numerous hidden costs all the difference, both in quality control • Provide budgets and estimates for speciﬁc engagements up front and
after a deceptively low initial bid. and in cost management. An outstand- advise you immediately if there may be any material changes.
As such, it is reasonable to expect e- ing project manager, combined with the • Understand that we are responsible for our budgets and estimates and that
discovery providers to create more our experience forms a basis for accuracy.
right technology, ensures that projects
value for clients within a reasonable • Seek to reduce our costs creatively and constantly, and share those savings
are handled efﬁciently, cost-effectively
budget while maintaining a strong bot- with you.
and on time. The right PM can make the
tom line. Here’s how, in eight easy • Understand that you seek neither elegance, new law, nor perfection unless
difference between success and failure these provide value consistent with your company’s objectives.
on a given discovery project. Counsel • Train our associates efﬁciently and effectively without imposing additional
How to Demonstrate Real Value should know who will be running the and unwarranted costs on you.
1. Establish expectations project before it starts and shouldn’t be • Never “reinvent the wheel;” we will look ﬁrst to past work product and
For many organizations involved in afraid to ask for project management encourage efﬁciency and continuous improvement.
litigation, e-discovery, along with the credentials. Counsel should also not • Not ask for blanket conﬂict waivers and discuss with you any client or
expect to pay an hourly fee for project issue conﬂicts.
Jon Resnick is Worldwide Vice Presi- management as ensuring that projects • Use technology to our mutual beneﬁt, including billing.
dent, Field Operations and Marketing, are managed efﬁciently and on time is • Meet deadlines and keep in touch.
Applied Discovery. just part of the new value proposition.
Please email the author at firstname.lastname@example.org with questions about this article.