I attended the Executive Counsel Institute’s “eDiscovery for the Corporate Market” conference last week. The event was quite educational, with 26 presenters including Gene Eames, Director, Search & Analytics Legal Division of Pfizer, Daniel Kulakofsky, Managing Counsel-Director E-Discovery of Travelers and several other members of corporate legal departments. The inclusion of corporate legal people was particularly interesting because they shared stories and best practices. The discussion about the relationship between In-House Counsel, Retained Counsel and service providers was informative.
Members of corporate legal departments discussed the issues they faced when dealing with newly retained outside firms. One of the biggest issues they face is that retained counsel often makes assumptions about a client based on past experiences with other clients. However, each company has its own culture, IT practices and discovery portfolio. So, it is important for the outside firm and its client to discuss the ediscovery process fully, prior to any action. In fact, many of the corporations represented at the conference have clearly defined eDiscovery protocols and policies and insist that outside counsel follow them.
Corporate legal departments are creating these eDiscovery protocols in an effort to ensure defensibility of their processes and to reduce costs. In many cases, they are also vetting and contracting with eDiscovery service providers under global service agreements. When a service provider is hired by the corporate client, but the day-to-day management of eDiscovery falls to retained counsel, confusion can arise. Corporate conference attendees insisted that the client must be the quarterback and take responsibility for its case. This is one of the best ways to eliminate scope-creep.
We are all familiar with scope-creep: the client makes its decision regarding how to proceed with a case based on a specific budget. It issues instructions to the service provider based on that budget. Then, outside counsel makes changes that can affect the cost. If the service provider hasn’t been instructed to notify the client of all cost-related changes, problems can arise. When the client receives the invoice and discovers the un-approved costs, they often push back. That is why one of the presenters suggested that as a best practice, he requests a weekly scope-creep report from service providers. Another shared that their company have an unusual contract with service providers which is milestone oriented and requires close collaboration among the three parties. Both of these protocols give the client better control of the process and the budget.
The discussion also turned to the value of project management. The organizations that are willing to pay project management fees see this service as a true value-add, while others felt that it should be included in the cost of service. The latter expressed a concern that the service provided by PMs was making up for shortfalls in the technology or processes. The former, on the other hand, believe that PMs are subject matter experts and that cases with project managers go more smoothly. The service providers that participated in this discussion supported the view of the PMs as experts. They emphasized the value of project managers as the hub between the three spokes of the eDiscovery relationship.
A quick note on the format of this conference: I found the participatory arrangement of the Executive Counsel Institute particularly educational. The moderators encouraged attendees to ask questions throughout the program, rather than at the end of presentations. And, the second day began with a session designed to “recalibrate” the program to address issues that were important to attendees. This event was part of a series. If you have an opportunity to attend one, I highly recommend it.