Electronic Discovery Vendor to Expert: It Is All About Trust

As everyone in the legal field can tell you, lawyer jokes seem to outnumber the lawyers some days. Jokes about eDiscovery providers are less common, but that may be changing. Recently, an attorney extremely knowledgeable about eDiscovery at an important New York law firm joked, "Do you know that there are now more eDiscovery vendors in the city than cockroaches?" The dizzying number of companies entering the field makes it hard for attorneys to find the right partner, and it challenges vendors seeking to develop long-term relationships with firms to differentiate themselves from the pack.

Consider that the exhibitor list for LegalTech New York in 2013 had 225 companies on it, and that only includes the ones who chose to be in the show. With so many options, how does a law firm make the critical decision to use one vendor over another for a make-or-break case?

The answer lies in finding companies that both law firms and their corporate clients can trust to execute the sometimes incredibly complex tasks associated with the matter, often in a time frame that virtually defies the laws of physics. In theory, this sounds obvious, but in practice it is much more challenging to evaluate and develop those relationships. One emerging method is to visualize a "Pyramid of Trust," which can help attorneys categorize and group the vendors they are currently working with or may be considering.

In order to fully understand the Pyramid of Trust, let's take a moment to define the key terms that comprise it.

Webster's online dictionary defines the word vendor as "one that vends or a seller." As an example, the website states "We're thinking of making a deal with that other software vendor." The origin of vendor is Anglo-French vendur, from vende "to sell," with a first known use in 1594.

A solutions provider, according to The Free Dictionary, is "an umbrella term for an organization that offers any combination of computer hardware, software and consulting."

The word expert is defined by Webster's as "having, involving, or displaying special skill or knowledge derived from training or experience." The website's examples include "We received some expert advice," and "The company has become expert at adapting its products for new clients." The word dates to the 14th century.

The Pyramid of Trust

At the apex of the pyramid resides the "vendors" -- the guys that are the "jack of all trades, experts of none" -- the "handymen" of the industry. Next, in the middle, are solution providers -- organizations that focus on a specific type of matter or have a tool that works best given a specific set of parameters. Last, but not least, at the bottom of the pyramid are the experts -- organizations that have a pool of very technical, highly knowledgeable individuals that will provide services and often testify, opining on the results of the work that has been done. This often leads to ongoing service and support. As the level of trust increases, the foundation of the pyramid becomes more stable.

There are some key questions firms can consider for each eDiscovery provider, which will help determine where they reside on the Pyramid of Trust.

How to Identify a Vendor

1. How long has the company been in business? Did it just spring up, or does it have the requisite experience to handle the need?

2. How long have the key employees (the ones actually doing the work) been with the firm? A trustworthy organization has the ability to retain its employees, generally because they all share in a common vision.

3. Are the tools that the company is using developed in-house or does it use industry standard software? In-house or proprietary software is not necessarily a disadvantage, but there is some merit to using commercially developed tools that have been tested by the "masses."

4. What security policies and procedures does the company have in place to protect the data it is handling? Federal regulations involving health, student and personally identifiable information have become much more stringent in the last five years, and if the company will be in possession of such materials, it is important to make sure they will be secure.

5. If a small case expands in scope, does the company have the resources to "grow" with it?

Assuming that the vendor has been engaged and done good work on multiple occasions, it may earn the right to move down the Pyramid of Trust and become a solution provider, where the qualifications become much more stringent.

How to Identify a Solution Provider

1. Can the company handle all aspects of the engagement -- pre-case consulting; assisting with the development of a discovery protocol; data mapping; development of a preservation plan, forensic collection; data extraction, processing, hosting, document review and production; expert testimony; and case closure?

2. Does the company have a proven ability to deliver on time and within budget, based on the original scope for the project?

3. Can the company think outside of the box to provide custom solutions when the scope gets tricky, or does it try and funnel everything through a single, rigid process?

4. Can the company handle nonstandard forms of ESI, including structured databases, mobile devices, obscure email formats, backup media, email archiving platforms, etc.?

5. Does the company's culture support redundancy if a key person on its team of professionals leaves the organization or requires an unexpected period of time away from the office?

6. Does the company document every request in a manner that can be used as part of an overall defensible approach, should the case go to trial?

If a company has proven itself time and again and it is on the short list of solution providers, how can it take the next step on the Pyramid of Trust and become the one that will work day in and day out with the case team on a bet-the-company case?

In today's litigation environment, the answer often lies with two simple words: expert testimony. Does the solution provider have the expertise to testify about any technical event that occurred throughout the case life cycle? If the answer is yes, then the company may deserve advancement to the next level.

How to Identify an Expert

1. Who will actually testify about the matter should it go to trial? Is the individual someone who has testified successfully before, or will your case be that person's first experience in a deposition or hearing?

2. Is the person an expert in digital forensics, the electronic discovery process, technology or on a specific software platform?

3. How long has this person been working in the industry? While it may seem like someone who has just "gotten into the business" may serve as a good expert, much of the conveying of technical facts or the defensibility of a process comes down to experience.

4. Make sure to take the time to vet the expert's CV and identify the experience that relates to your project. What does the expert's CV look like? Most experts do not spend all of their time just on testimony. They invest time in writing industry articles and on delivering education via CLE programs. Bear in mind that, much like on a resume, it is easy to skew or massage the facts.

5. Interview the expert. Sometimes a quick phone or in-person conversation will reveal a personality characteristic that might not otherwise come through on paper.

6. What references can be provided so that the firm can check on the past performance of the expert? Any true expert will have a host of individuals that are happy with the work provided and would be glad to candidly discuss their experience.

How do providers know when clients consider them experts? Sometimes, it is easy to tell. Candid communication tends to come out when time is of the essence and confidence in the work product is critical. In one recent case, a litigation support staff member sent us an email that read "I really appreciate the diligence on this. I can now forward this information on with complete confidence!"

While eDiscovery vendors may not yet outnumber cockroaches, remember that there are a lot of them and they are not all created equal. Just like attorneys generally focus on select types of law, so do discovery providers. The Pyramid of Trust represents an invaluable guide to find ones that can be counted on, time and time again.