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The Need For Long-Term Integration in Complex Discovery

By Scott Woodworth, Senior Account Manager, ACT Litigation Services

As the discovery services industry matures, more and more decisions are being made by the principles of “strategic sourcing,” which typically means bidding each project out for the lowest line item prices to yield the greatest cost savings. With discovery comprising 80%–90% of the litigation costs (and document review comprising 75%–90% of the discovery costs), it is important to consider all of the moving parts when planning to meet each party’s specific needs. The strategic-sourcing-like approach, which may be moderately successful in squeezing a small amount of discounts often translates to a higher all-in cost for the corporation and increased likelihood of missing deadlines for outside counsel trying to make tight production deadlines.

Encouraging dialogue, integration and long-term relationships among the participants is often a better way. The following examples may help to paint a clearer picture of the challenges in bidding different providers for each project and each stage of each project:

  1. The first matter that is worked on amongst the corporate legal team, outside counsel and supplier is often the one most fraught with difficulty. This is because each individual and group of individuals is trying to get to know how the other parties work, agree and understand process and technology and marry multiple cultures. However, once these understandings are gained, future projects run more smoothly.
  2. Very often, the lead associate assigned to working with the supplier is relatively new to running a complex discovery matter, commonly a second- or third-year associate. While focusing on the legal aspects of the case and managing the discovery team, this young attorney must also quickly learn complex technology and process to make important strategic and tactical decisions. In these initial cases, the associate comes to know the supplier they are working with very well in terms of what is possible. Each time an associate is assigned to a different supplier to save some real or perceived line-item cost, he or she often has to bill more time to the client in order to come up-to-speed. These costs can easily offset the line-item savings.
  3. Document review platforms: It is very common when training legal teams on our hosting review platform to hear that they are learning a new platform for each case. This forces legal professionals who have invested a substantial amount of time learning one platform and all of the intricacies therein to start all over again–with cases that often have multimillion-dollar outcomes riding. These supplier changes are often not due to process or technological benefits, but perceived cost savings. No matter how much they train, the time working on the platform and with the project team is where the legal team really gains the working knowledge that will benefit them on this and future cases.

Corporations tend to be focused on cost savings. Law firms tend to be deadline driven. These two goals can work in unison or they can be opposing depending on the timelines for the case and the workflow that is agreed upon upfront. The need to put these coexisting goals on the table at the outset and find solutions to meet each party’s needs is the foundation for success.

Most successful engagements are where the decision makers for the corporation(s), law firm(s) and supplier(s) are all involved and there is an open dialogue to reach agreed-upon goals, both upfront and ongoing. When one party is missing so is important information and perspective. Projects are best launched with a kickoff meeting involving the entire legal team to design the project workflow and agree on tasks, responsibilities and timelines. Following this scoping meeting, a weekly conference call (or calls at some other agreed upon interval) with all participants helps to facilitate the dialogue through weekly, daily and hourly changes that are occurring in real time. This takes commitment and is easily overlooked as each party works on the legal aspects of their cases.

Without this regularly scheduled dialogue, it is very easy for members of the corporate legal team(s), outside counsel(s) and supplier(s) to continue operating in their functional silos without knowledge of what the other members are working on or expect. Then the deadline arrives and it’s too late. Within the corporation, law firm and supplier, there can be functional silos among attorneys, paralegals, litigation support, project management, account management, engineers and IT, with each working on their own piece of the puzzle until and unless effort is made to break down these barriers.

An even better approach is when corporate counsel or law firms work with litigation service providers ahead of any case assignments to dialogue about their typical case needs and the specific needs of counsel, paralegals, litigation support, IT and other participants. Corporate counsel can often facilitate these initial meetings with their most utilized outside counsel. During these meetings the supplier can gain an opportunity to establish the personal relationships that help it weather the difficult and stressful times that occur sometime during most matters. Sometimes cultures don’t mesh and it’s better to find out before a case is assigned. The law firm can also share their preferred processes and technology, which facilitates the writing of any custom export programs, specifications and utilities ahead of a project—something that can become a bottleneck in the middle of a high stakes case.

As a long-time manager of discovery services, my strongest and most valued relationships have taken years to develop. There is a lot of learning involved and bumps along the way. With each case our integration becomes tighter. But getting there takes a sophisticated approach that requires buy-in and time for all parties involved. Most of our competitors are happy to engage in line-item conversations, but that’s only a small piece of a very large puzzle. We believe we can serve our clients best with a holistic approach.

If you find yourself continually involved in large, complex discovery, I highly recommend investing the time to visit the suppliers you are considering in person. Talking with the people behind the scenes, touring the facility and seeing the processes and technology in person is something that cannot be accurately conveyed through websites and slick brochures. You will seize an opportunity to assess your comfort level of those who will be shoulder-to-shoulder with you when the going gets tough.

Our ultimate goal is to help you succeed on your cases while offering solutions that save the corporation money and simultaneously meeting the deadlines of the legal teams. The best way to accomplish this is through dialogue and integration.