By David R. Hazouri, Esq., on behalf of the Electronic Discovery and Digital Evidence Committee, Business Law Section of the Florida Bar

About the only thing moving faster than the introduction of new business and legal data management solutions seems to be the ever expanding universe of the data itself.  Thankfully, the last few years has finally begun to see a maturation of the e-discovery industry on the whole.  This maturation has yielded a more uniform landscape in terms of the breadth and quality of vendor core competency.  This statement seems particularly true in the context of the Electronic Discovery Reference Model (ERDM) conception of e-discovery workflows.^[1] 

            The field has also seen a healthy proliferation of industry intelligence identifying the current best solutions on the market and the better known vendors providing them.  Lawyers and law firms will find that they now have a wealth of online information at their disposal to understand and navigate this highly technical (and often jargon laden) world.^[2]  However, learning how to effectively match existing or anticipated needs with the “best” solution can take time to master.  This is true not only because needs can vary, but also because developing good insight involves acquiring at least a baseline of experience with live e-discovery.  Assuming that the reader is closer to the beginning of this learning curve than the middle, this guide will provide a series of questions that can be used in just about any initial scoping exercise in choosing an e-discovery vendor.    

            The first set of questions is aimed at getting a sense for the vendor’s market position, business philosophy and long term stability.  It is assumed that at this point the practitioner is talking with a pool of vendors that include those recommended by colleagues.    

• How long has the company been working in e-discovery, and in particular, how long have they been providing the full range of services they currently offer? Have there been any recent mergers or significant technology acquisitions?

• What cases has the vendor worked on that are relevant to your current case or typical case profile?  What, if anything, has the vendor learned about servicing these case types that can be transferred or reproduced for you?  How has the vendor ensured that it has retained this experience to address your case in terms of either critical personnel or valuable workflow tweaks?

• What local law firms or general counsel has the vendor worked with and who in particular can you contact as a reference?

• How does the vendor distinguish itself from its competitors and who does the vendor think it compete with?

• What is the vendor’s philosophy/business practices with respect to technology: have they developed solutions in-house or are they tech-agnostic?  Why? 

• What is the vendor’s philosophy with respect to management and personnel: are the founders still present, are there any experienced attorneys in key positions, are project managers certified PMs, does the vendor attempt to train and promote project members from within? What, if any, performance metrics does the vendor track in order to improve?

            The second set of questions attempts to drill down on the technical components of the vendor’s operations.  

• What does the vendor do to maintain the security and integrity of client data? Can the vendor explain how its systems are ISO 27001 compliant and provide that explanation in writing in the event a client requires it?

• Does the vendor rely on any third-party subcontractors and what does the vendor do to vet the quality and security of their services (including third-party hosting services)?

• Does the vendor plan to transmit any client data either outside of the country or to service centers in a different time zone? Does the vendor have access to off-shore labor and how does the vendor QC for their work product?

• What portion of the vendor’s technical solutions are either proprietary or licensed from another source?  If proprietary, how long has the solution been in place, what type of market acceptance has it attained and why is it as good as, or better than, other best-of-breed technology?  If licensed, is the vendor audited by the licensing provider for performance and has the vendor achieved any level of performance recognition by the provider?

• With respect to review platform technology in particular, are there any compatibility issues between the vendor’s processes and either your firm’s platform or any popular platform that the opposing party may be using?  

            The third set of questions seeks to probe how the vendor proposes to handle your matter as you have generically described it.  The more the practitioner knows about the common variables of e-discovery, the better the practitioner will be at giving the bidding vendor the information it needs to accurately formulate a bid.  However, even during the bidding process, a good vendor representative will be prepared to solicit key pieces of information from you in order to give you their best solution.  If the vendor simply asks for your data size and budget – run!    

• Can the vendor assist with all phases of the data collection process, including helping diagram a client’s IT structure or interview data custodians? How is this priced? 

• Is the vendor capable of performing targeted, as well as wholesale, forensic data captures and can the vendor perform these remotely where appropriate? 

• Is the vendor capable of performing Early Case Assessment techniques on the collected data to help provide you with advance intelligence about your data’s characteristics and prioritize the promotion of filtered data for efficient attorney review? 

• Does the vendor perform routine filtering (e.g. de-Nisting, threading, de-duping) upon initial data ingestion and does it charge separately for this? Does the vendor automatically index the ingested data in the event you want to run more sophisticated analytics or is this a separate decision/charge? 

• What is the projected workflow proposed by the vendor through production, what are the various vendor employee-positions within this workflow, and what is each role’s hourly rate? If you don’t like your assigned project manager, can you request another without a cost consequence? 

• Can the vendor run processing and production 24/7 if need be, and what are the typical lead times the vendor experiences around collection, ingestion, review platform upload, search term runs and final production sets? (There are a lot of variables involved in these processes, but at least try to get a response in terms of a generic multi-gigabyte scenario). 

• If you are going to have a significant number of scanned files that don’t preserve the natural breaks within the original documents, what is the vendor’s unitizing and coding solution for making these scans more search friendly?  

• What does the vendor do to audit its search and production results and how do they provide supporting evidence/testimony at trial if need be.

• If the vendor is supplying the review platform, what is the per user fee, does the vendor provide any free training for new users and what type of user support after initial training will they provide.

• In terms of data hosting, is the vendor’s pricing based upon raw data size or on post-processing decompressed size?  Can data be stored longer term in cheaper near-line storage and what charges are associated with archiving and re-activating data at any point. 

• Is the vendor comfortable providing production sets in native format using a hash value appended to the file name as a bates label numbering system?

            To the extent that any terms or concepts contained in the above bullet points are unfamiliar, please Google them for more clarity.  It is quite amazing how much helpful information about the e-discovery basics is in Wikipedia, alone.  Of course, a more fulsome glossary can always be found at the Sedona Conference website at https://thesedonaconference.org/download-pub/3757. 

David R. Hazouri is a twenty-year commercial litigator, e-discovery counselor and data management consultant with Hazouri Law (www.hazourilaw.com).  He has practiced with both national and boutique law firms and consulted for local legal technology vendors and global LPOs.