E-Discovery #NoFilter

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1 NOT FOR REPRINT Click to Print or Select 'Print' in your browser menu to print this document. Page printed from: Corporate Counsel E-Discovery #NoFilter A Survey of Current Trends and Candid Perspectives Ari Kaplan, Legal Tech Newsletter March 11, 2015 Between Jan. 6-22, 2015, Ari Kaplan Advisors interviewed 29 professionals responsible for e- discovery decision-making. We asked them for their perspectives on key vendor management trends, and for their candid impressions of the following 15 companies: 1. AccessData 2. Clearwell 3. Deloitte 4. DiscoverReady 5. DTI 6. Epiq 7. Exterro 8. FTI 9. Guidance 10. Huron 11. kcura 12. Nuix 13. Recommind 14. RVM 15. UnitedLex 1/6

2 Eleven of the respondents are in-house lawyers. Nine are in-house legal personnel, and nine are law firm partners. All of the survey respondents implement e-discovery tools and develop e- discovery processes. All but one of the participants select e-discovery tools and vendors. Those at corporations are in financial services, life sciences, technology, manufacturing, energy and telecommunications. 95 percent work for companies with revenues that exceed $10 billion and have over 10,000 employees. All law firm partners work for Am Law 200 organizations and serve as primary e-discovery counsel. Vendor Perspectives The e-discovery leaders in corporations and at law firms have an incredible depth of knowledge on the vendor landscape. Many spend significant amounts of time listening to demos, evaluating peer perceptions, and studying key trends prior to formulating an impression of a particular software or service provider. And, once they do form that opinion, they are open to changes based on new developments, upgrades, and shifts in corporate direction. That said, software and service providers should try to solicit detailed feedback from clients and prospects as a means of gauging their performance on a regular basis. It is critical to understand this information for marketing, expansion and development. Technology and Talent Our research found that while 64 percent of the respondents are using the most current version of 2/6

3 their respective tools, others are reluctant to make the shift for various reasons. "The legal team is in the process of transitioning away from [one tool] to [another]," said one in-house attorney. "We are waiting to upgrade [the tool] when the license expires," added another. "Don't want to be a guinea pig," remarked a participating law department leader. While they are not all universally investing in technology, there was an interesting split in future investment plans among corporate counsel. A few are planning to supplement their internal resources, while others are more focused on engaging outside support. "We are outsourcing relationships and making sure they are working to drive costs down," said one. "Investing in an RFP to ensure competitive pricing, but not investing resources since the company only uses outside providers," added another. One in-house lawyer countered: "We are investing in in-house tools and processes." In-house legal personnel were consistent in their intent to increase their internal capabilities, from education and training, to early case assessment and staffing. A few also mentioned the importance of improving their internal metrics. "[We are investing in] in-house analytics to do a better job of identifying relevant documents," noted one survey respondent. For law firm partners, the two most sigificant projected areas of investment seem to be in hiring and expanding managed services relationships. "We are investing in personnel since the firm has made its software investments in the past few years," said one partner. "We are drowning in work; we hired two tech folks," added another. With respect to providing e-discovery services: "Law firms shouldn't be in the business of running little e-discovery companies," remarked one partner. "We are a law firm and not an e-discovery services provider," added another focused on partnering with trusted external providers. When asked where their peers are investing, responding in-house lawyers frequently cited information governance as an area where competitors are investing, while in-house legal personnel suggested that their peers are focused on a variety of areas, including improvements in preservation and workflow. Law firms seem to be divided between enhancing their internal capabilities and strengthening their relationships with outside providers. "They are always trying to figure out how much to bring in-house or to use vendors on," said one partner. What Matters Most? The key issues for corporate counsel ranged from preserving and collecting from the cloud to cross-border discovery. There was little consensus other than "driving efficiency into the process and leveraging technology," said one respondent. Some are also hopeful for a future governed by new rules. "We were hoping that the new Federal Rules [of Civil Procedure] would help us, but I don't think they will for the next three to five years, unless there is some interesting case law that arises," added another. In-house legal personnel held similarly diverse views, though a few noted that the growing volume of data continues to be a challenge. "We are trying to make the haystack of information that we have to sift through smaller," an e-discovery leader said. For many law firm partners, the focus is on client service coupled with competitive advantage. "Anything that allows me to find answers faster than my competitor is critical; it is all about the technology and the strategy of using it," one partner added. 3/6

4 Corporate counsel praised standardization. "We are seeing benefits in standardization, both on a tool and on one process," said one in-house attorney. "Our preferred relationships are working very well," added another. Many are also seeing an increased level of familiarity, which is supporting improvements. "There is a heightened awareness of e-discovery within the organization." One lawyer summarized the biggest challenge: "We are good at collecting, processing, reviewing and producing; we are bad at defensible deletion and culling. So we end up dealing with much larger volumes than we should." Another law department leader further summarized that challenge: "Getting the data out is working; culling it down is not." While law firm partners agreed with many of the comments from their in-house peers, one highlighted the mobility factor. "All of the tools discussed work for and the Microsoft Office suite of documents, but when we start getting into social media, text messages, instant messages, data from the cloud, and mobile phones, there are issues." That is likely to be a growing concern in the near future. What Should Vendors Do To Stand Out? The last question we asked in the e-discovery Unfiltered survey was "What qualities do you value most in your service provider?" The responses were fairly consistent. Communication, transparency, and trust were key themes for all participants, regardless of their role or level of responsibility. In addition, when we asked about the industry leaders, many repeated the traditional name brands of e-discovery, but a fair number also highlighted up-and-coming providers, who are generating momentum. One in-house attorney remarked: "I am surprised there hasn't been more 4/6

5 consolidation." That trend may take hold this year, but there are a few key qualities that most agree help a vendor stand out. Provide Guidance, Rather Than Simply Service Most in-house legal teams have plenty of choices. They choose to work with specific vendors, not only because they can perform their assigned tasks, but also because they value the consultative approach. "You need to have partners focused on serving your interests to tell you when the decision you are making may not be the right one and steer you toward a better solution," said one in-house lawyer. "The ideal contact will have the technical expertise, as well as the big picture knowledge, understanding and judgment, preferably with some legal background," added a law firm partner. Reveal Mistakes Quickly and Sincerely Many of the respondents remarked on the damaging repercussions of a mistake, though they universally acknowledged that errors in e-discovery are inevitable. Vendors do not need to be flawless, but they should be aware, transparent, and responsive. Start by consistently documenting QC processes to quickly identify and resolve potential issues. "If and when something goes wrong, knowing that you will have someone find a solution that appreciates your relationship is key," said one law department leader. "I want to know that things will be done right and when there is an error, they will make it right by fixing the problem so that it doesn't happen again; that is the number one issue that I care about," added a law firm partner. Communicate Early, Often and Completely Given the concern with mistakes and consistency in their approach, most of the survey participants expect a robust level of communication from their vendors. "I don't want a vendor to go silent; it is the worst thing in the world," said one in-house lawyer. "The communication is the most critical part because everything flows from that; if you are not communicating well with your vendor, every other aspect of the project will suffer," added a law department leader. That said, one in-house lawyer highlighted the importance of a seamless collaboration. "The less you have to think about your vendor, the better a job they are doing." Build Trust and Provide Excellent Customer Service Beyond correcting mistakes and providing regular status reports, many survey respondents place a high value on a service-oriented culture of integrity. "If I am paying you for a service, and that service does not extend beyond a statement of work, I don't want to continue to work with you; I need to hire someone who is willing to go to bat for me and has my best interest in mind," said one in-house lawyer. "Vendors must act in the company's interest and not the vendor's interest," added an in-house law department leader. Law firm leaders feel the same way. "I want a trusted advisor and not a vendor since we are 5/6

6 partners on every case. If something is not working; I want the vendor to let me know and not try to hide the mistakes," said one partner. "Honesty is critical," says one law firm partner. "I can fix anything if I know about it so customer service and honesty are essential," added another. Ari Kaplan is a lawyer, legal industry analyst and a member of the Legal Tech Newsletter's board of editors. In addition to producing public and private survey-based reports on key trends, he also serves as a ghostwriter for many companies in the legal technology and e-discovery sector. If you would like to obtain a copy of the page 2015 "E-discovery Unfiltered" report, learn what the respondents think of your company (if listed above) or participate in the future, please contact the author at Copyright ALM Media Properties, LLC. All rights reserved. 6/6

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