Barry’s article, “Who Owns eDiscovery?” focused on the challenges of corporate investment in the overall eDiscovery process without clear ownership between IT, Legal, Compliance, Records Management and even the business units. It occurred to me that there is an entirely different ownership battle being waged over who is actually managing and performing the actual document review. The law firms have traditionally owned the review process and born the risk of inadvertent production of privileged and unprotected confidential documents. With eDiscovery slowly evolving from an ad hoc reactive fire drill into a managed business process, corporations have begun to take back the upstream or ‘EDRM Left’ phases of the eDiscovery lifecycle. This is happening at the same time as public corporations are experimenting with Business Process Outsourcing (BPO) and SAAS solutions for infrastructure and internal services.
Looking back in time to the paper/image days, the outside counsel owned review. They might have hired contract attorneys to staff up a big review, but most just forced associates to do mind-numbing hours with boxes or Summation/Concordance. With the introduction of early hosted review platforms like Stratify, Attenex, FIOS and CaseCentral, physical access was no longer required. A few progressive companies started negotiating fixed rate contracts with the hosting companies to supply lower cost remote contract attorneys and even project managers. Firms have not been happy about this erosion of their authority and revenue. No one goes to law school wanting to review documents for the rest of their life, so I believe that many firms are secretly happy to ‘get back to practicing law’.
So the real question is whether corporate legal departments will continue to bring review platforms like Relativity, Clearwell, Ringtail and more fully in house or gravitate to SaaS providers like Nextpoint, PlanetData, Catalyst and others. The market is getting very confusing with providers offering hosted, enterprise and appliance licensing models of the same software. The overseas BPO firms seem to have lost a bit of momentum during the recent recession. They also faced some hard questions about the security, privacy and privilege issues of transferring or viewing critical corporate ESI over international boundaries. So who do you think will own Review as eDiscovery continues to grow up?