King & Spalding's Discovery Center Under Senior Litigation Oversight Produces E-Discovery Savings

Monday, February 1, 2010 - 01:00
Richard A. Schneider (Doc)
Paul J. Murphy
Dan H. Willoughby Jr.

Editor: Paul, I have heard about King & Spalding's Discovery Center, and I read the article about reducing e-discovery costs for UPS - so what is the secret?

Murphy: The true way to achieve cost savings in handling e-discovery is to offer clients a comprehensive program for seamlessly addressing e-discovery that can drive efficiency, reduce costs, and simultaneously create confidence on the part of the courts. We developed a process that achieves those three goals. Our firm's approach has evolved continuously over the last 15 years and has been further refined working with the UPS Legal team under the leadership of my partner, Dan Willoughby. And I know he loves to tell the story so I am going to defer to him.

Willoughby: The Discovery Center has its roots in a single big case production 15 years ago and has been in continuous operation every day since then. Our basic approach over the years has been not to use temporary workers - but to hire and train for the long term a core group of dedicated discovery specialists under the supervision of some of our top litigators to offer a one-stop solution for all of the facets of the e-discovery process with high quality at a very competitive, cost-effective price. Just by way of background, all three of us are senior litigation partners at King & Spalding, and we all play different roles in our e-discovery solution.

Our solution has two parts. The first part is our E-Discovery Practice Group, which is a group of partners and counsel who are experts in e-discovery rules and case law. That group provides guidance and advice to our clients on e-discovery issues and policy through the entire process - from helping clients understand the issues they face beginning with the preservation of electronically stored information (ESI) and issuing litigation holds and continuing through the life cycle of e-discovery through production.

Doc heads up our E-Discovery Practice Group and the group is comprised of leaders in the field. A good example is Chilton Varner, who is a member of the Federal Rules Advisory Committee, which is the committee that wrote the recent amendments to the Federal Rules of Civil Procedure that now govern e-discovery.

The second part is our Discovery Center, which was set up 15 years ago at the request of a global company facing a nationwide onslaught of high-stakes tort litigation. The scope of discovery reached epic proportions. Our client asked us to partner with them to develop a high-quality cost-effective approach to handling that matter that replaced the traditional approach of using traditional litigation associates to review documents at market-level hourly rates.

We built a team of discovery specialists - project attorneys and staff attorneys - who could deliver discovery services to the client at lower rates, while still delivering King & Spalding quality. We housed our Center in economical facilities and then built a core team of dedicated specialists - who are loyal to clients and the firm, and supplied them with state-of-the-art technology and training so that they can perform accurate reviews and discovery tasks at a fast clip and at considerable cost savings over traditional models.

Using this model, our Discovery Center has provided top-notch discovery services to over a hundred different companies in discovery matters, including many Fortune 500 companies.

As we sit here today, the Discovery Center houses 150 discovery professionals, including 125 attorneys, focused exclusively on providing high-quality, cost-efficient document services both in litigation and in transactional matters. We have handled literally thousands of matters over our 15 -year history, and we are pleased to report that our team has regularly helped our clients to comply with discovery and due diligence obligations.

Our Center helps not only our own litigators provide discovery services to our clients, but we also serve as discovery counsel in cases where other firms serve as lead trial counsel.

The Discovery Center follows protocols developed and refined from more than a decade of document production, privilege logging and responding to written discovery. We are experts in the use of advanced screening methods to reduce the number of collected records that ultimately require attorney review for production. We have developed the most efficient procedures for drafting responses to written discovery requests for entire dockets of cases with a computer tool that catalogues and indexes approved responses and objections by subject matter, ensuring consistent responses, eliminating costs associated with re-drafting previous responses, and reducing burdens on company personnel. Our method for drafting privilege entries, enhanced over years of litigation, efficiently produces a privilege log able to withstand challenges.

We employ state-of-the-art technology to reduce document review costs and increase productivity. Widescreen flat-panel LCD monitors further contribute to a significant improvement in our attorney review rates - the equivalent of adding 1.5 reviewers to a 10-person project at no additional cost.

The speed and efficiency of our experienced attorneys, following proven protocols and using state-of-the-art equipment and systems, results in substantially reduced costs for clients.

Murphy: I told you he loves to talk about it. Having this type of process in place is where clients realize savings. Most large law firms will respond to discovery requests, but because we handle e-discovery differently, they can't do it effectively at the price we charge.

Because we use specialized project and staff attorneys, we are able to charge clients a significantly lower rate than that charged for our full-service associates. That is what made it attractive to our clients and gave the system traction at the outset.

We have seen companies experiment with different approaches including using domestic and overseas vendors offering lower hourly rates than what you get from any law firm that charges for e-discovery on an hourly basis.

We looked at that price challenge to determine how it compares with our approach. Through empirical studies, we determined that lower price does not always mean lower cost for the client - and it is cost that the client should be focusing on, not price. If a provider with a lower price takes three to four times longer than we do to complete a task, and we can do it for the same or lower cost, and do so without quality control issues, it is a better deal to use us. We have eliminated process flaws and reduced QC issues through creating and observing best practices. Because our total immersion in the process enables us to interface with our clients more smoothly, we reduce their costs as well as ours.

Schneider: We really do two things for clients. First, we help them come up with a game plan for handling discovery in a uniform way so that lawyers do not have to re-invent the discovery wheel every time a new case comes along. And second, we do the heavy lifting of collecting, reviewing, logging and assisting with preservation. Clients interested in a cost-effective one-stop solution can direct their outside counsel to us, and we coordinate discovery going forward, using our experience with the client to avoid ramp-up time. It has proved to be a very well-received set of services.

Editor: How about unit pricing - I understand you offer unit pricing on some projects. What is it?

Murphy: In working with clients, we realized the value of supplying an alternative billing arrangement that is not tied to hourly rates and instead sweeps all of the costs of review into a single cost per document. To do this, we have to spend time at the outset assessing the volume and tools available and assessing the staffing that will be needed to get the job done, and we estimate what it will cost per document - and then we quote a per document price, and we take the risk to manage the job to deliver the project at that price. And what we have learned is that our team is so fast and so experienced that we can deliver unit prices that are very competitive when compared to any of our competitors and offer true value, particularly when you consider the quality and expert oversight offered. We not only process the documents and prepare the logs, but we have the experience to walk into court, make the arguments, and defend our production. When we say one-stop shopping at a cost-effective price, we mean it. Just ask our clients.

Willoughby: The all-in per unit price is designed to reflect the entire spectrum of customary discovery phases: collection of documents, processing documents, hosting the documents on a review tool, actual review of the documents themselves, quality checking and the tasks associated with actually producing the documents to the requesting party.

UPS Legal, who we partnered with in developing the bundled-cost approach to e-discovery, reported that by working with us last year they had reduced their e-discovery spend by 50 percent. They told us that they now have a better handle on the developments in their cases and that greater cost predictability has helped them with their long-range budgeting and planning. That is high praise. UPS Legal is an extremely sophisticated purchaser of legal services and is an innovator in driving efficiency in all aspects of its business.

Editor: What do you predict for future trends in e-discovery?

Schneider: The tea leaves say that courts will find ways to control the volume and costs of e-discovery to be sure the tail does not wag the dog and to be sure there is proportionality between the size of the case and the size of the e-discovery bill. For example, Chief District Judge Holderman is running a pilot program in the Seventh Circuit to test reforms of the federal rules to help control the cost of litigation, including e-discovery. There will also be new decisions refining what the obligations are and what sanctions will result for failing to meet them. The solution needed is to comply fully with discovery obligations at the most cost-effective price. We are dedicated to providing that solution.

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