Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-02-23 12:50:51Format, images and links may no longer function correctly.                 Several recent blog posts and discussions on various industry listservs have raised interesting issues about the potential problems and benefits of consultants working for and with software and service providers. See John Heckman’s post ‘What is a Consultant, Anyway?’ as well as Seth Rowland’s ‘Sales vs Consulting – The Cost of Independence’ for some well developed criticisms of consultant’s who are compensated by the seller instead of the buyers. Steve Miller’s ‘What is a Consultant, Anyway? My Two Cents’ provides some counterpoints supporting vendor relationships for consultants. These opinions seem to originate from the software sales area instead of actual consulting on cases.

                When we look at the first decade of eDiscovery (1995-2004), it is easy to see how clients came to expect a certain amount of free project management consulting from their imaging/copy providers. Everyone was struggling to understand how to convert or manage native electronic files within the discovery lifecycle and the local shops were more than happy to give out free ‘advice’ regarding the very limited technology options available. With the amazing profit margins to be had at 15¢ per page, building the customer relationship was far more important that trying to charge for a portion of the sales cycle.

                The first couple of big eDiscovery sanctions rulings in 2005 ( Coleman v. Morgan Stanley & Zubalake v. UBS Warburg LLC) combined with the looming December 2006 amendments to the Federal Rules of Civil Procedure to raise awareness of the potential risks surrounding this new intersection between law and business practice. The relative newness and complexity of eDiscovery created a demand for consultants whose expertise covers technology, legal process and overall project management. So firms and corporations turned to their service and software providers with the expectation that they would receive unbiased, expert best practice for free.

                When we talk about consultants, everyone sees the role from different perspectives. Here is a quick list of some of the primary ‘consultant’ roles:

  • Project Managers – oversee complex processing/reviews, usually attached to a service offering
  • Technology  – support the sales and implementation of enterprise software and appliances
  • Forensic/Investigations – carry out large scale or sensitive audits and collections
  • Expert Witness – render opinion or advice on a specific set of issues within a matter
  • Business Process – typically support retention/content management, risk/cost reduction
  • Industry Analyst – market analysis of trends, competitive functionality and other factors

All of these consultants have typically been attached to larger service or software companies. The market has continued to evolve and we have seen several attempts to create large scale corporate consulting practices focused on eDiscovery by firms like LECG, Huron, FTI and LexisNexis. These have been successful when they stick to specific matters, but have had issues when they have tried to convert their roles to embedded Subject Matter Experts via Litigation Readiness and similar offerings. They face a significant challenge due to their billing model and the need to generate sustained revenue from high margin associates. Their business model is designed to extract maximum value from a client by taking over a problem rather than enabling the client to own the final process.

So the bloggers that raised this issue were primarily commenting on the potential ethical conflicts associated with LexisNexis’s CIC (Certified Independent Consultant) reseller program. They would fall under my Technology Consultant  or Project Management Consultant label above with a decidedly sales orientation. LexisNexis has always used attorneys for certain sales, consulting and channel roles. This strategy has definitely helped them sell a lot of software and fits in well with their primary legal research businesses. It also has the risk of encouraging potential buyers of viewing their sales reps as providing actual legal advice or consulting best practice that is purely in the best interest of the client.  The primary question that you need to ask is , “Who is my consultant working for?” The answer should be simple, but rarely is.

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