Editor: Please share with our readers a brief background of your professional experience.
Curtis: I am chair of Orrick’s eDiscovery and Information Governance Group.
Prewitt: I am the director of e-Discovery Review and New York Operations with Kiersted. I’ve worked in the industry for 15 years and have been with Kiersted for the last five, leading the project management staff and then eventually the New York office.
Editor: When working with outside counsel and service providers, what are the most important characteristics inside counsel should look for?
Curtis: There are three components to a good relationship. The first is a provider who offers customized solutions and a consultative approach. Each case is unique, as is each client’s data, and if the preferred provider only offers “off-the-shelf” pricing or solutions, they’re not partnering with the company to come up with creative solutions and pricing models that meet the needs of each case. Second is dedicated personnel. With each new matter, we want to see the opportunity to leverage intuitional knowledge to gain efficiency, issue spot and propose creative solutions. Finally, there is communication. You’re looking for a true partnership with communication flowing both ways. There should be an opportunity for everybody to give constructive feedback and to share lessons learned after each new matter.
Prewitt: I agree, and communciation ties into the dedicated staffing of the project. From the vendor perspective, you want a project manager to take the lead on communication, ensure that all parties are kept in the loop and really follow through. It’s extraordinarily important that team members communicate up front to ensure that there are no gaps in knowledge.
Editor: What type of process should inside counsel and legal teams put in place internally to work with external vendors?
Curtis: I can’t say enough about repeatable process. There are four big buckets to consider. A standardized master services agreement and statement of work are really important to the efficiency and transparency of the terms of the contract, the relationship, and of course the pricing. In terms of the mechanics of working with the information, we recommend standardized collection, processing and production specifications. Standarized communications are also helpful. For example consistent subject lines for email simplifies sorting and filing on particular matters. When requesting collection, standard documentation reflecting scope and the priorities and timelines is important. You should standardize communciation of what has been accomplished, what is outstanding and what your budget is against your expenditures. Finally, it is important to have a dedicated project manager who is your first point of contact and escalation protocols in place so that when there’s an unexpected challenge or problem, everyone knows who to go to to raise issues promptly.
Prewitt: Wendy is spot on. From the vendor side, the key is standardized protocols. During a standard project kickoff, we gather all project stakeholders together up front to talk about the project itself, the nature of the project and who is going to be responsible for the various components. It is also important to have documented procedures. When the client asks how you handle a matter, it is vitally important to be able to answer that question and provide documentation showing the processes and workflows you have in place. In this way, there’s always a reference point to return to and you also get buy-in from them up front on the process.
Editor: What are the ramifications if a process does not go smoothly?
Curtis: Cost and reputation. Cost is fairly self-explanatory, but I think it’s important for everyone to also remember that the vendor is a reflection of counsel and the client; this is true of both the relationship between the law firm and the client and in the relationship with counsel and the opposing party and the court. If you miss deadlines, have incomplete productions or miscommunication, it results in delay, and that reflects on everyone.
Prewitt: Right. Missed deadlines, delays, or anything that causes an internal tension within the team can really be detrimental to the project. Reputation is extremely important for everyone involved, and we want to make sure that we always put our best foot forward and keep that reputation secure.
Editor: How does working with the right outside counsel and service provider limit those risks?
Curtis: I would say efficiency, predictability and trust – with a big emphasis on trust. We know that data sources are proliferating constantly, and so there’s often the unknown and the unexpected. When processes are in place there is a foundation of trust. In this way, the law firm, vendor and client’s interests are aligned, and these challenges get caught and resolved early and without damage to the merits of the case.
Prewitt: When communication protocols are followed, issues are documented and expectations are met, it’s really difficult to find yourself in an unfavorable position.
Editor: What type of metrics should be tracked to assist with cost control and to keep projects on track?
Curtis: Tracking your budget against your spend is critical. At times, certainly when you have bursts of high activity, you may need more frequent spend reports – as often as weekly if not daily. We compile information on the number of custodians and data sources collected as well as the deadline for each phase of the process. Then we track the data collected, culled, viewed and produced. We also track the number of documents that are identified for privilege review and the number of documents logged.
Prewitt: From a vendor standpoint, managing expectations is just as vital as the metrics themselves. It’s important to outline the expectation of data to be culled out of the universe and it’s important to make sure that the vendor knows the budget. When vendor contacts are well aware of the expectations, and they see that data is growing or there is some scope creep, they are better able to communicate that information appropriately.
Curtis: I would add one other vendor best practice. There is often, unfortunately, a misperception by attorneys that once they finish their review, they can call the vendor and the production can be generated in a matter of hours, especially if it’s a small production. There’s a component of machine time as well as just human scalability that every service provider has to factor in. When tracking and discussing deadlines, it is helpful when vendors remind firms that they cannot generate production in less than 24 hours. If you release the data for production on day one, the vendor generates the production by the end of business day two, the law firm likely wants to QC it the morning of day three – that’s really a three-day lag time. There’s also a perception of 24-hour-a-day service. While vendors can often provide that service, it comes at a cost. When people are working at 2 a.m., you run a greater risk of human error, so when contemplating an after-hours component you should give the vendor ample advanced notice so they can staff fresh personnel that haven’t already been working for the past eight hours.
Editor: As outside counsel, how involved are you throughout the process in terms of dictating specifications to the service provider? And how involved should your client be in that process?
Curtis: I had a bit of a reaction to the nomenclature that you used. What we’ve talked about in describing some of the successful partnerships here is a give and take and a leveraging of the subject matter knowledge of the law firm, the vendor and the client. The word “dictating,” should really be “consultative” and case specific. That being said, we are very involved. When creating preferred vendor relationships, we are involved in creating the documentation and metrics that we’ve talked about. The collection, the processing, the production specifications -- all of that will have a meaningful impact on the volume, the cost and the speed of services. We must supervise the identification and recall of responsive data, so law firms should be very involved.
Prewitt: I would say also from the vendor standpoint that it’s extraordinarily important that we are consultative in processing and production as well and that we don’t allow instructions to be dictated over. We scrutinize requests and if there are questions that arise or things that seem to be outside of the norm from an established relationship, we follow up with appropriate questions. For instance, you may be asked for all the files with an .xls extension to be produced natively. A proper consultative response might be to ask whether .csb’s and things of that nature should be included as well. In a consultative relationship everyone knows and understands exactly what and why certain requests are being made so that those requests can be documented and that information can be referenced as needed throughout the project.
When outside counsel, clients and service providers create a true partnership with communication flowing, dedicated personnel and repeatable processes, it creates a winning formula for all.