A multi-part series on eDiscovery program management issues facing serial litigants, including readiness, resources, service providers, metrics, and more
In the first Part of this series, we reviewed the concept of program management (as distinguished from project management) and discussed its potential cost and risk reduction benefits. In the second Part, we discussed the evaluation and improvement of organizational litigation readiness. In the third Part, we discussed how to evaluate your existing needs and resources. In the fourth Part, we discussed the available solution models. In this Part, we continue our review with a look at the evaluation of eDiscovery service providers.
Evaluating Potential Service Providers
When we speak in this context of evaluating service providers, we are not speaking of the rush to find a service provider for an immediate project need. Rather, we are speaking of the proactive evaluation of service providers for the establishment of ongoing relationships, whether as a preferred provider, a managed services provider, or a total process outsourcing provider.
This is generally accomplished through a Request for Information (“RFI”) process in which a service buyer collects desired information from a group of potential service providers in an organized way to facilitate comparison. RFI is sometimes used interchangeably with RFP (“Request for Proposal”), which would be used to request bids for the completion of specified work (usually on an individual project). Having already made an effort to evaluate your existing needs and resources and to consider the available solution models makes it possible for you to craft an effective RFI focused on your organization’s specific needs and preferences.
Guides to the RFI process and sample RFI forms for service providers to complete are readily available on the Internet, so we will not cover those basic mechanics of the process here. Instead, we will review the core competencies it is most important to investigate when planning an RFI for eDiscovery service providers, along with some tips for an effective RFI process.
Core Competencies to Investigate
There are some service provider competencies that cut across all activities and others that are specific to service type and project phase. We will review the general competencies first, and then those specific to each category of services:
Across all Services
- Is data security and physical security consistent with your organization’s data protection standards?
- Do data backup and recovery capabilities provide you with sufficient protection and an acceptable restoration time?
- Does the conflicts checking and management process includes adequate safeguards and sufficient notice?
- Are support hours and available communication channels compatible with your anticipated needs?
- Do the service provider’s project managers have suitable experience, relevant certifications, and reasonable caseloads?
- What user training, expert project consultation, and other client support will be available with the services?
- Does the service provider have experience providing affidavits, process testimony, or meet and confer planning and support?
- What are the service provider’s prices and available pricing models?
- How established and financially sound is the service provider?
- Does the service provider have collection solutions compatible with your sources (e.g., servers, PCs, mobile devices, social media)?
- Does the service provider have adequate assurances of and documentation for forensic soundness and chain of custody?
- How complete and transparent is the service provider’s overall collection tracking and reporting?
- Does the service provider maintain secure media storage for collection materials?
- What software platform(s) does the service provider use for data processing (e., industry standard vs. proprietary)?
- Are the platforms in use compatible with your typical (and any proprietary) data types?
- What general level of processing throughput can the service provider maintain?
- What standard or customizable filtering options does the service provider offer during processing?
- What tools and specifications does the service provider use for index creation, and can index creation be customized?
- How does the service provider handle exception tracking and other processing reporting?
Review Hosting Services
- What software platform(s) does the service provider use for review hosting (e., industry standard vs. proprietary)?
- What are the technical accessibility requirements for the service provider’s platform (e., compatible devices, required software)?
- What are the restrictions on system availability, on overall up-time, and on simultaneous users?
- What administration options exist for managing roles, permissions, and access?
- What are the available tools in the platform for early case assessment, for review design, and for project management?
- How does the service provider staff its review teams, and how quickly can it staff up and down when needed?
- What are the typical reviewers’ experience, certifications, and training like, and are any of them experienced in your most common matter types?
- How are review projects managed and reported upon, and how much transparency and oversight is possible?
- How are review projects designed, and to what extent are analytic tools and technology-assisted review leveraged?
- What quality control methodologies are employed, and what standards are applied?
- Can the service provider generate productions in any format (e.g., native, imaged, hybrid, hosted)?
- Is the service provider experienced with producing to particular technical specifications (e.g., the U.S. DOJ Antitrust Division production specifications)?
- What is typical production throughput and required lead time for preparation?
- What quality control steps does the service provider employ for production deliverables?
Tips for an Effective eDiscovery RFI Process
Because of the huge variety of service providers and pricing models in the eDiscovery industry, a well-thought out RFI process is your best chance to achieve meaningful, apples-to-apples comparisons between your potential options. Here are some tips for doing that effectively in an eDiscovery services RFI:
- First, focus on your primary concerns to start, rather than attempting to learn everything possible about every potential provider all at once. This makes it easier for responding service providers to comply and easier for you to aggregate and compare responses. Employing a multi-phase RFI process allows you to ask more and different things in each successive round as you narrow down the field of potential providers.
- Second, be as clear as possible in your instructions for the completion of the RFI and provide example responses wherever possible. The easier you make it for service providers to understand what is desired and how it is desired, the easier your aggregation and comparison of their responses will be later.
- Third, when gathering information on pricing, do not be afraid to dictate the way prices should be presented or to provide a pre-made calculator spreadsheet for respondents to fill out (e.g., one of the budget calculators offered by EDRM). You can allow providers to share their preferred pricing pitch too, but requiring that they also present prices in some standardized way is one of the best ways to meaningfully compare them.
- Finally, the other effective way to compare prices, as well as capabilities and approach, is to pose one or more hypothetical project scenarios to the participating service providers. Ask them to break down what options they could offer for it, which option they would recommend and why, and what the recommendation and other options would cost.
Upcoming in this Series
In the next Part of this series, Management Metrics for eDiscovery, we will continue our review of eDiscovery program management issues with a discussion of tracking and reporting on cross-project metrics.