In today's litigation environment, more and more law firms are bringing significant aspects of e-discovery-in-house while minimizing the role of outside service providers. And many others are at least considering it. When done correctly, in-house e-discovery offers numerous advantages: cost-savings, more control and the opportunity to provide better client services.
Now is a good time for law firms to at least consider the idea. While e-discovery remains a challenge for law firms and their clients, the picture is much clearer now than it was a few years ago. The revised Federal Rules of Civil Procedure have been in place long enough that many attorneys and their clients feel more comfortable navigating the e-discovery process. More cases involving e-discovery are working their way through the courts, and judges are providing clarity when it comes to what they expect of litigants. And more clients have begun to understand the importance of creating and following good records management practices.
Back when there was so much confusion and uncertainty around the rules and processes, it made sense for law firms to work with third-party service providers whenever their clients had e-discovery issues. It was the prudent, responsible approach. So much has changed that it makes sense to make the leap in-house now, right? The answer is--maybe.
While there are many reasons to consider moving critical functions in-house, there are also pitfalls that firms face when they tackle e-discovery themselves. As judges become more familiar with issues, they are growing increasingly impatient with litigants that fail to handle e-discovery correctly. They will not hesitate to sanction clients and their attorneys.
With careful planning, though, law firms can decide if it makes sense to move many aspects of e-discovery in-house.
Common Mistakes Law Firms Make
When exploring whether to move e-discovery in-house, law firms should take the same approaches they would when expanding into other client service or practice areas. There are a lot of mistakes that firms can make if they aren't careful.
Biting Off Too Much
Law firms are full of smart, competent people, and lawyers are used to being subject matter experts. Naturally, many lawyers are familiar with many aspects of discovery, and they may feel that they can jump in to e-discovery with both feet and totally cut off relationships with service providers. But this is almost always a mistake.
Few firms have the size and the depth to employ the staff and attorneys who can focus all their time and effort on e-discovery. It takes professionals who are dedicated to e-discovery to understand the nuances, evolving case law and cutting-edge technologies that can provide the best results for clients.
Underestimating Costs and Expenses
Since most firms handle some aspects of discovery already, they may not realize how much expense and expertise it takes to handle the entire process in-house. But infrastructure, technology and the manpower required to collect, process, store and review terabytes of potentially responsive information can quickly become overwhelming.
Failing to Get Buy-In
As with any new law firm initiative, it's critical to get the executive committee, managing partner and other influential thought leaders on board. Otherwise, your efforts will be doomed to failure--or at least, your e-discovery program will not flourish the way it could.
Ensuring Successful In-House E-Discovery
Once law firms understand the dangers, they can actively work to minimize them and make their transition a success.
Do the Research
E-discovery is an ongoing topic of conversation among clients, service providers, legal experts and the judiciary. With so much e-discovery information available, law firms should take advantage of the knowledge of others. Before purchasing software, hiring new staff or making any other big investments, lawyers should spend some time talking to their peers, attending trade shows and querying vendors. Talking to colleagues with real-world experience can be invaluable.
Understand the Firm's Strengths and Weaknesses
There are many different aspects involved with e-discovery, from information management to production. Firms should consider which areas they want to become experts in, and they should take an honest look at what their clients need and what skills their attorneys and staff have. They may want to begin by helping clients create data management plans or developing data maps. Or they could focus on the production.
Firms can ease into in-house e-discovery by focusing on the areas where they feel most comfortable, eventually expanding their services as their clients learn to trust their experience and advice when it comes to e-discovery.
Find the Right E-Discovery Partner
Few firms are large enough to become experts in e-discovery, while managing the technology and keeping up with ongoing trends and best practices. That's why it's important to work closely with a trusted service provider, even while moving many e-discovery functions in-house. By developing long-term, deep relationships with e-discovery experts, law firms will be able to work with a deeper bench. When a client finds itself involved in a litigation with terabytes of data, an aggressive opponent and tight timelines, the law firm can quickly call in reinforcements.
Service providers can also augment the services that law firms may not want to handle themselves, such as maintaining the servers and software that comprehensive e-discovery projects require.
Or consider the area of document review. It rarely makes sense for firms to keep a huge staff of reviewers on the payroll, just waiting for the next big litigation. E-discovery service providers can help firms ramp up quickly when extra reviewers are needed.
For many law firms, providing more e-discovery services makes sense. The difficulty lies in figuring out how, and even whether, to proceed. By carefully thinking through the process, law firms can make the right choice for themselves and their clients.