1. CONSIDERATIONS WHEN
DESIGNING E-DISCOVERY
PROCESSES, WORKFLOW,
AND
TECHNOLOGY SOLUTIONS
David J. Kearney
ILTA Volunteer City Representative
May 23, 2013

2. SUMMARY
 With the exponential increase in ESI collection sizes,
the rapid changes in technology, the high expense
of qualified personnel, and smaller clients with very
conservative budgets and limited knowledge in the
area of e-Discovery, all but the largest of firms need
to seriously consider a myriad of options when
bringing e-Discovery processes in-house or
outsourcing the function or designing a hybrid
model. There is no one-size-fits-all approach, but the
large firms and small to mid-size firms need to
approach the development of such services much
differently.
 Today, organizations are at a crossroads regarding
managing components of the litigation lifecycle.

3. FOOD FOR THOUGHT
 Is it time to consider outsourcing at least
some of the functions that are currently
provided in-house?
 Is it time to consider bundling a good portion
of services and solutions under a managed
services arrangement?

4. AREAS TO BE COVERED
Organizational Culture Workflow
Maturity of Organization Cost Recovery
Risk Tolerance of Organization Project Management & Solution
Evaluation
Internal Technology Infrastructure &
Technical Complexity
Education & Training
SLA & Support Coverage Collections & Testimony
External Access to Internal Data Litigation Applications
Functionality & Advanced
Functionality
Pros & Cons
Personnel Protecting the Organization

5. ORGANIZATIONAL CULTURE
 Will the firm culture support the commitment needed to build, run,
and manage an organization in-house?
 Is the firm in a position to invest significantly in an area that is not
their core competency?
 How will the firm tolerate the learning curve and operational shift
that will inevitably be encountered when building an internal
department or outsourcing the function?
 Commitment is needed from firm management, practice groups,
and even information technology (especially when building the
technology infrastructure in-house).
 An insourced department must be handled as a business and just
not billed at an hourly rate.

6. MATURITY OF
ORGANIZATION
 Is there a size limit, monetary value, or deadline threshold that dictates when and how an e-
Discovery project is handled?
 There are times when additional help is needed by additional technology, more personnel, or
outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities.
Unfortunately, sometimes due to circumstances the project must be or is forced to be managed
in-house with limited resources to the detriment of the client, firm, and case.
 Are there documented intake procedures?
 Is data chain of custody documented?
 Is evidence physically secured?
 Is having an in-house e-Discovery service a strategic advantage to the firm or section?
 Are the services provided value added, break-even, or profit driven?
 Value added e-Discovery services may not be sustainable in the long term due to the internal
costs that are absorbed. A profit driven model may become a detriment because a firm may
not be able to be competitive with 3rd party service providers.

7. RISK TOLERANCE OF
ORGANIZATION
 Attorneys are Generally Risk Adverse
 Law Firms are Generally Conservative & Cautious
 Handling Compliance and Other Data Obligations

8. INTERNAL TECHNOLOGY
INFRASTRUCTURE &
TECHNICAL COMPLEXITY
 What kind of technical infrastructure will the firm support?
 Disk space, servers, backup technology, disaster recovery locations need to support the
amount of data that you may house.
 Is the current network bandwidth sufficient to handle the network traffic between
locations?
 The technology infrastructure costs to support a robust application suite and usage demands
requires a significant monetary investment.
 Is the solution scalable?
 Could the organization add hundreds of GBs or TBs quickly? How scalable is the software?
 What kind of software application(s) will the firm support? Standardize?
 Is the software under regular development to include the latest bug fixes and
technological advancements?
 Does the software developer have the infrastructure to handle support requests, code
changes/feature requests, and consulting?
 Data sizes explode without warning, so is there a plan to expeditiously handle the needs?

9. SLA & SUPPORT COVERAGE
 Is there a defined Service Level Agreement?
 Are there identified support personnel?
 Traditional Help Desk personnel may not be the best personnel to
handle e-Discovery or related application questions
 Attorneys & paralegals work beyond traditional 9- 5 or 8 – 10 hour
workday…so can a managed service provider offer better support,
e.g. 24 X 7 X 365?
 What is the firm and department expectations?

10. EXTERNAL ACCESS TO
INTERNAL DATA
Do 3rd parties, such as co-counsel, experts,
clients want to be able to access the
discovery data?
Does the organization have the required
security protocols to manage external access
while safeguarding other client and case
data?

11. FUNCTIONALITY &
ADVANCED FUNCTIONALITY
Examine, evaluate, and make decisions on:
 Processing
 Culling – Deduping, Filtering, Keyword Searching
 Searching, E-Mail Threading, Near Duplicate Identification,
Clustering
 Review – Humans & Technology Assisted Review
 Productions
 Litigation Hold Management

12. PERSONNEL
 What positions within the firm will be designated for Litigation Support/e Discovery?
 What department will the position(s) report? IT, Litigation, Practice Support, KM, etc.?
 How many personnel are needed?
 What is the skill set, education, & experience required?
 What is the compensation of the position(s)?
 Does the environment support the salaries needed to keep qualified personnel interested, engaged, and dedicated?
 Does anyone currently on staff, such as paralegals, have the required skills to transition to an e-Discovery, more
technical, role?
 Will the position(s) have a backup to accommodate vacations and peak workloads?
 Will the position(s) be able to manage the workflow with vendors due to technical complexity, volume, or extremely
tight deadlines?
 Is there anyone willing at the senior management level to support the e- Discovery position(s)?

13. WORKFLOW
 Intake
 Consulting
 Solution Evaluation & Implementation
 Project Management
 Tracking of Requests
 Tracking of Discovery
 Quality Control
 Productions
 Archival, Closure, Destruction

14. COST RECOVERY
Are there cost recovery mechanisms in place
to recover costs associated with the
collection, processing/conversion/scanning,
hosting, transfer, an production of data?
 Are the costs being captured hourly, are they
task oriented, or both?
Will the client base pay costs from 3rd party
vendors, but not from the firm regarding e-
Discovery services?

15. PROJECT MANAGEMENT &
SOLUTION EVALUATION
Project Management (internal & external practices)
 Consistency – Defensible and Repeatable
 Transparency – Do you know where your project is at?
Solution Evaluation (when examining solutions)
 Evaluation of Needs
 Cost of Proposed Solutions/Methods

16. EDUCATION & TRAINING
 Is there a training program in place?
 Are the attorneys, paralegals, and e-Discovery personnel
enhancing their knowledge by learning about the latest
techniques to manage e-Discovery, manage projects, collect
data, reduce data, and process data?
 Who provides the training for the review and early case
assessment tools being used?
 Knowing about the latest technology, best practices, and ways
to better manage a project will certainly help manage costs,
manage expectations, and better manage the case.

17. COLLECTIONS & TESTIMONY
 Accidental or purposeful mishandling of evidence can
lead to varying degrees of sanctions, including a default
judgment, so knowledge of how to handle digital
evidence is crucial.
 Organizational personnel may need to testify as to how
the data was handled, collected, and processed if the
process was handled by internal personnel.
 Managed Service Providers typically have personnel that
can testify on collections & technical processes and assist
at the meet & confer.

18. LITIGATION APPLICATIONS
 Is there an understanding that the software is only half the battle
when it comes to handling an e-Discovery project?
 The application(s) should be a part of the overall strategy of the e-
Discovery organization within the firm, whether supported in-house or
outsourced. Once it is determined what functions need to be
performed and how the service is delivered will determine the best
application(s) for the job. Selecting an application should never be
the first decision made when setting up the e-Discovery organization.
 Software includes review, processing, presentation, and
ECA/EDA & culling

19. PROS
Insourced Outsourced/Managed Services
Profit Center (assuming it is run as a
business)
Focus on Core Competency – Practice of
Law
Ability to Write-Off Services More Easily
Technological Complexity Handled More
Effectively
Planning & Action Can Wait Until Closer to
Last Minute Minimize Risks to Case & Organization
“Comfort” that Data and Personnel are
within 4-Walls of Organization Technical Headaches are Minimized
Personnel within “Arms Reach”
Minimizing Overhead Costs & Cost Control
More Flexibility in Choosing ad hoc
Providers
Potential of Greater Realization/Recovery
Rate of Fees/Less Write-offs
More/Less Resources Being Able to be
Utilized – Peaks and Valleys
Greater Agility

20. PROTECTING THE
ORGANIZATION
 It may make a lot of sense to outsource the entire technology
infrastructure and services needed to support applications,
servers, backups, software and hardware upgrades, storage
space management, processing and hosting data, case
consulting, and 24 X 7 X 365 availability and support.
 All firms that practice litigation must have some sort of
organization around handling e-Discovery. Software alone or a
reactive plan will not position the firm to respond rapidly,
consistently, or effectively to firm and case needs.
 Regardless of how the services are provided, a firm must look at
all of the components required and decide upon the best
approach

21. ASK YOURSELF…
 Is your organization protected if personnel quit tomorrow?
 Is your organization protected if a disaster strikes?
 Are processes and matter history recorded?
 Has a risk analysis been conducted to manage any issues or
recover from potential risks?
 Has a Cost/Benefit analysis been conducted to make a sound
business decision?
 Is the firm, client, or practice at risk by how things are currently
being handled?

22. TIPS
 Don’t make a la carte/Rack Rate pricing a deterrent.
 Weigh each provider with what matters to your organization, such as geographical location,
financial strength, nimbleness, local/national reputation, availability/accessibility, relationship, etc.
 Don’t assume that the data or process has to be within your organization’s 4-walls to be secure and
available.
 Managed Service Providers/Vendors have the ability and it is in their best interest to be creative
when it comes to volume pricing, case type pricing, fixed-fee pricing, or usage pricing.
 There is no perfect solution, either internally or outsourced, so keep in mind that no vendor or
vendor solution is going to be a panacea, but it is how the vendor responds to issues that will make
or break the relationship and arrangement.
 Taxation of Costs will more easily recoverable when documentation of actual work and line-items
costs, not just hours, exists.
 Cost-Shifting may be easier to justify with quotes from a vendor that has cost metrics for tasks.

23. THANK YOU