EDRM Evergreen/Review/Selecting a Service Provider

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Categories

[+] Analysis
[+] Collection
[+] Identification
[+] Information Management
[+] Presentation
[+] Preservation
[+] Processing
[+] Production
[+] Project Management
[+] Review

There are many factors that need to be considered when selecting a third-party vendor for the review portion of your electronic discovery project. Optimally, the vendor requirements are detailed during the initial planning phases of the project and the vendor of choice is involved in – or possibly even charged with – the digital evidence collection, forensic analysis and restoration portions of the project. The more involved your vendor of choice is in the overall development and execution of the project, the smarter and more prepared they will be regarding your needs and requirements.

Prior to discussing the selection criteria related to a vendor, let’s first consider the different types of vendors that may be involved in an electronic discovery project, as well as the types of services that they typically provide.

  • Consultants/Experts. These vendors typically help to establish, evaluate, describe and/or defend electronic discovery processes. Their services often include expert testimony.
  • Service Providers. These vendors typically collect, process and/or load electronic data into discovery platforms where the data can be managed, reviewed and marked for production. Some service providers may have review tools that only provide pre-production document review services, while others provide pre- and post-production services, including redacting, bates numbering, and production tracking.
  • Software Providers. These vendors typically develop, distribute and support software used for the collection, review, archiving and production of electronic data.

For purposes of this node, our considerations regarding the selection of electronic discovery vendors will focus on the selection of service providers that offer document review solutions. Considerations include the financial condition and longevity of the firm to the breadth of their services, the methodologies behind their technical processing, as well as, the experience and current client commitments of their team of project managers. The first and foremost consideration when selecting a service provider is to assure that you have a clear understanding of the goals and objectives of the review: What exactly are you trying to accomplish for your client? Which service provider most adequately and efficiently meets those needs?

Section I of this node, Planning the Review, outlines the various planning decisions and objectives that need to be determined in order to foster an effective review process. Once those objectives are established, the selection of a service provider should focus on identifying the service providers that will assist you in obtaining your goals.

There are several high-level choices to be made when examining a review platform for your document review. Should you go with a review platform that supports a native file format review, an image review (e.g., TIFF/PDF), or a review that supports the simultaneous review of both native file formats and images within the same collection? Will you require a platform that supports foreign language documents and, if so, to what extent? Do the parameters of your review encourage a review platform provided by a service provider or one hosted and supported internally? Other factors to consider include the current functionality available within the platform, future functionality and system enhancements, IT issues and cost considerations, as well as service provider’s reputation, reliability, scalability and security. We will examine each of these areas and provide you with some tools and guidelines to assist you in making an effective decision. Finally, we will suggest that you consider, when possible, pre-qualifying service providers. This will allow you to perform your evaluation and selection in a controlled, methodical environment rather than in the often chaotic environment experienced immediately after a discovery request is received.

Contents

Service Provider Review Platform vs. In–House Review Platform

A critical decision in your service provider selection process is to determine whether you are performing your review on an application hosted internally, or hosted and supported by a service provider. Are you going to be using an application that is supported by your internal IT department, either web-based or on your internal network, or are you going to be using a web-based review tool with hosting provided by a third-party service provider?

Software providers, responding to the demand for better ways to manage and present evidence, have developed off-the-shelf solutions that law firms and corporate law departments can employ instead of building the solutions themselves. The top in-house litigation support systems all have their pros and cons. It is essential that each law firm and corporate law department carefully select the system that is best suited for the type of litigation the firm or corporation most typically addresses. Employing a universal solution throughout the law firm or corporate law department will provide the ability to implement standard policies and monitor compliance with these policies to mitigate risks during the document review phase. Many firms and corporate law departments have employed multiple solutions to provide them with the ability to scale up, or down, regardless of the size or type of case that comes in the door.

This type of endeavor involves a significant up-front investment and the following may need to be acquired:

  1. Scanning, coding and OCR software and hardware.
  2. Electronic data processing software.
  3. Document repository and review tools.
  4. Adequate storage and file space on the corporate network.
  5. Trained staff and ongoing support.

Another option is to go with a web-based or online review tool offered by a service provider. While this option may offer less direct control over the project, it offers increased flexibility as there are a multitude of service providers in the market with different review features and functionality that can be matched to the specific needs of your matter. Many service providers with an online review tool also offer the full range of services needed to collect, scan, code, process and load your data into the online repository, and make that system available through a secure web site. Added security may be enhanced through the use of a Virtual Private Network (VPN) or Secure Socket Layer (SSL).

There are an increasing number of service providers that offer the best of both worlds – providing you with an in-house software application similar to their online environment. Depending on the nature and size of the case, you can use your in-house tool, or migrate to their online system seamlessly at any point in the project.

The volume and format of the documents collected for review will often dictate where the repository will be hosted. Also, the distribution of the review team will determine whether or not the repository needs to be hosted on an enterprise-wide area network, on a Citrix-type system, or on a secure extranet. Every firm has limitations as to what it can host internally. Items which need to be considered to determine if the project will be hosted internally or by a service provider include the following:

  1. Who will need access? Different organizations have policies which might prevent other organizations any access to its network. With a multi-party litigation, it may be necessary to use a service provider’s system to allow all parties equal access to the data.
  2. Timing. Hardware/software/security constraints of your internal IT infrastructure may impede the timely commencement or progression of the document review project.
  3. Expertise. There are many companies who manage the workflow of a review. If your firm is new to the process, you might gain valuable insights from the experience of a service provider.
  4. Staffing. Resource needs for reviews can cause peaks and valleys in resource requirements. Planning for this in a review process can be easily managed by using a service provider.
  5. Support & Training. Be aware that availability of ongoing support and training is a critical factor to consider. If you choose an in-house product, you will need to dedicate time and resources to deploy upgrades to the system and provide additional user and administrator training. By contrast, any top-tier service provider will offer on-going training, support, and 24-hour customer service.
  6. Security & Infrastructure. Can the firm’s internal network handle the proposed amount of data, volume of concurrent users, and IT support estimated for the project?

Native Format vs. Image (e.g., TIFF, PDF)

Historically, most ‘electronic’ review was done using a TIFF or PDF image of the document. The electronic data was converted to an image, and the text and metadata may also have been extracted and entered into a database so that the documents were searchable and the reviewers would look at the rendered image.

Today, it would be difficult to find an electronic discovery service provider whose review platform did not provide the ability to perform a review in an image format (e.g., TIFF, PDF). Most service providers today also provide review platforms that allow you to review in native format, and also allow you to convert the data to an image (e.g., TIFF, PDF) if and when you chose. Within these applications, once you convert the native file to an image, you are also able to keep a link to the data in its native format, in case “side-by-side” review is desired. (Please note that when we speak of a native format review, we mean retaining documents in their native application (e.g., MS Word, MS Excel, etc.) and reviewing the documents on a platform that allows you to view the document from within that program or with a generic viewer, rather than converting the documents to an image file.)

Service providers who offer review within the native format must retain the integrity of the native file so that the review does not cause any spoliation of the underlying native file. This is typically done by extracting the metadata and text of the file into a database for searching purposes and retaining a link to the native file in a read-only format. These safeguards may not be in place if you review documents natively from your workstation. The mere act of opening a document may change pertinent metadata, so be cautious and understand the differences between a ‘native review’ through an electronic discovery service provider and a native review performed on unprocessed files at your workstation.

Email files are typically not retained in their native format but may be handled in several different ways, with most service providers converting email files to html or a plain text format, while keeping the email attachments and file system data in their native format. Because relationships (i.e., “family relationships”) between emails and attachments must always be maintained, reviewing e-mail in a format that preserves the metadata, conversation threads and attachments is most desirable.

To address the inherent difficulty in making sure that every reviewer’s hardware has all of the necessary applications properly loaded on their workstations in order to view the native documents, many service providers also offer the use of a generic ‘viewer’. These viewers (such as QuickViewPro) convert the native document to a plain html format that can be viewed in any browser, or within the viewer itself. This eliminates the need to have the application loaded on the workstation.

This issue can also be eliminated by having all documents converted to a standard image format, such as TIFF or PDF. A benefit of this type of review is that they may reduce the amount of time it takes to open and close the applications as the reviewer moves through the documents.

There are pros and cons to each of these review formats. Using an electronic discovery service provider whose system keeps the documents in their native format during review provides these benefits:

  1. It saves the time and expense of converting the entire dataset to TIFF or PDF prior to review, thereby saving the cost of imaging documents that are not going to be produced (as well as the cost of hosting those images).
  2. It allows you to see and review data that may not appear in some types of images such as tracked changes, formulas and hidden rows or columns.
  3. It ensures that potential spoliation from inadvertently opening a native file is eliminated.

Conversion to TIFF or PDF for review provides these benefits:

  1. It gives reviewers a standard, “locked-in” format for all documents.
  2. It gives you control over what metadata and hidden information is produced to the opposing side.
  3. Click-through rates from document to document may be faster.
  4. Documents are in a production-ready state, so production timelines may be reduced.

It should also be noted that if you choose to perform a purely native format review and ultimately produce in a TIFF or PDF format, you should ensure that your reviewers examine the documents fully, including hidden rows, columns, headers, footers and track changes. This information may be exposed during the conversion from native to image so you must be sure that it is reviewed for privilege. A TIFF or PDF production from native documents may take longer to perform if there are conversion issues, or a high percentage of large spreadsheet files.

Many service providers are now offering TIFF-on-Demand service which generates a TIFF or PDF image as soon as the user requests it. This process can greatly speed up the production process as well as instantly provide an image for redaction. Some service providers also generate image files during the initial processing and offer access to both the native and the image within their platform. (While the user will typically pay less in overall fees for a TIFF-on-Demand approach due to processing and hosting less images, please note that the actual per-TIFF fee charged by many service providers may be higher than the per-TIFF fee charged by other service providers to TIFF entire collections.)

The decision regarding native format review vs. image format review, and consequently the type of review platform that you select, may be determined by Rule 34b of the Federal Rules of Civil Procedure. Rule 34b allows the requesting party to designate the form in which ESI will be produced. The responding party may object and identify the form it intends to use, to which the requesting party can either agree or move to compel production in the requested form. If no form is specified, ESI must be produced in the form in which it is “ordinarily maintained,” or a form that is “reasonably usable.” Therefore, the Rules themselves have bearing on the type of platform that you select for your review.

The native format vs. image format decision may be driven by the requirements of your production. If the requesting party has asked you to produce in a native format, it may not be a wise choice to initially convert everything to images, only to have to revert back to the native format for production purposes. If you are going to produce in native format, perhaps it would be best to review the files in native format, in order to ensure that you are reviewing all the hidden text, track-changes, etc. On the other hand, you might have more control over your production if your images are in a uniform converted format.

System Functionality

The features and functionality provided by the review platform is probably one of the most important factors when selecting your service provider. If you have done your homework and taken the time in your planning process to define your requirements and review strategy, the selection process can be performed systematically. Frequently, a matrix defining the essential requirements can be used when comparing service providers and can greatly simplify the decision making process.

The following outlines some of the basic review features that need to be included in a review system and questions to ask the service providers regarding their functionality:

Tag, Code or Annotate the Documents

Whether you require simple review and coding for Responsive, Non-Responsive and Privilege documents, or in-depth subjective coding, the system should allow you to create your own coding scheme and apply it to the documents loaded into the system. Some questions to ask are:

  1. Can the administrator add codes as needed?
  2. How many codes can be used?
  3. Can emails be coded separately from their attachments or are the email and attachments bound together?
  4. Can you execute batch/bulk coding of, or batch delete coding from, a large group of documents?
  5. Does the system provide tools to identify or safeguard against inconsistent coding?
  6. Can you auto-code duplicates with the same relevancy designation? If so, is there a way to apply an exception to a particular document(s) and how are family sets handled?
  7. Can you enter attorney notes and are they searchable? At the page level? The document level?
  8. Can documents be highlighted?
  9. Can documents be easily redacted online?
  10. Can work product from document review be exported from the review platform to facilitate the creation of the Privilege/Confidential logs

Foreign Language

Depending on the needs of your case and the characteristics of your data collection, it may be extremely important to evaluate the capabilities of the review platform to handle foreign languages. If you have documents containing foreign languages, can they be processed and managed within the review platform?

Most email systems use a character encoding scheme called UTF-8 (8-bit USC/Unicode Transformation Format). UTF-8 is a variable-length character encoding scheme for Unicode. It is able to represent any character in the Unicode standard, yet the initial encoding of the byte codes and character assignments for UTF-8 is backwards compatible with ASCII. For these reasons, it is steadily becoming the preferred encoding for email, web pages and other places where characters are stored or streamed.

In order to properly view foreign language documents, the review platform must support UTF-8 data encoding for document metadata as well as the document content. When foreign language data is loaded into a system that does not support UTF-8, foreign characters are typically translated into ANSII character equivalents (a series of boxes or question marks.) This translation renders the document unreadable and can impact search recall.

For systems that support UTF-8 encoding, you need to consider if Boolean searching, as well as more advanced searching techniques, can be performed on the documents and understand how the search results are displayed. Also, understand how the review platform treats documents that contain more than one foreign language? If documents are “bucketed” by foreign language, and if documents are “bucketed” based on concepts or linguistic patterns, how will the documents with multiple foreign languages be addressed by the review platform?

You should also ask your service provider about their workflows and experience for producing foreign language documents once they have been reviewed. If documents are to be TIFFed, is the TIFFing software UTF-8 capable? If the parties agree on a common application, that application will also need to support UTF-8. If the application does not support UTF-8, consider producing foreign language documents as TIFF/PDF only.

Search

The review platform must allow basic Boolean or other robust searching of the text and metadata of the documents. Phrase, proximity, wild cards, concept, fuzzy, near-dupes and other types of search tools are beneficial, but their importance will be determined by your review strategy. The system should also allow you to sort your results by various criteria such as date, custodian, and subject line.

Alternative search tools, such as concept searching and visualization, should also be considered.

Organization Tools

The ease and simplicity of creating and assigning folders or review sets to attorney review teams for review is essential. You should ask your service provider candidate(s):

  1. Can the administrator create their own logical review sets?
  2. Can the administrator easily assign those review sets to a user?
  3. Can the administrator monitor the progress being made on each review set?
  4. Can reports be generated detailing activities and progress made on the review sets?
  5. How many review sets can be generated in the system?
  6. How many can be assigned to a single reviewer?
  7. Can the system auto-assign a review set when a reviewer checks-in a completed review set?
  8. Can access to a review set be secured from other reviewers?

Integration of Electronic and OCR and TIFF Data into the Same Platform

Most discovery projects have both paper data as well as ESI. Identifying a service provider whose platform can handle both formats will allow you to centralize your review in one place.

Production

Your service provider must be able to meet your production requirements. Most service providers can produce TIFFs or PDFs, but many productions now require native format productions or load files for Litigation Support databases such as Concordance or Summation. If that is the case, be sure to fully understand the capabilities of the service provider with regards to generating native documents in a production format. Many of these issues will be covered in more depth in the Production module, but you should factor in these issues when selecting the review platform. Questions that should be addressed here include:

  1. Can the service provider handle single page TIFFs, multipage TIFFs, PDFs and/or native format productions?
  2. Can the service provider handle a production that contains a mix of TIFFs or PDFs and native formats?
  3. What type of load files does the service provider have experience generating?
  4. Does the service provider have full Bates numbering and other branding capabilities?
  5. What experience does the service provider have generating Bates numbers for native format productions?
  6. How do they handle native format production of emails?
  7. How does the service provider handle attachments? Do they retain the relationship or connection to the email?
  8. Are the documents identified with any unique naming or numbering?
  9. Can the service provider create digital signatures or a simple hash of the documents to assure security?
  10. Can the service provider reintroduce produced data back into the online review platform and provide production tracking?
  11. What is the turnaround time to complete a production?
  12. Can the service provider handle multiple productions of the same data with multiple prefixes and bates numbers (e.g. tracking the same data produced to multiple parties)?
  13. How are files processed before they are converted to TIFF or PDF (i.e. are columns expanded, print areas cleared, speaker notes produced)?
  14. How does the service provider handle date codes?
  15. Does the service provider support bringing the data in-house after the initial review is complete?

Redaction

Depending on your review requirements, redaction capabilities may be an essential feature for your review. If you are in a native format review platform, be sure to understand the workflow the service provider uses to generate and post TIFFs for redaction purposes. Many service providers now offer TIFF-on-Demand so there is no delay in getting the redaction accomplished.

During the production phase, you will want the text that has been redacted to be removed or hidden within the produced dataset. It is important to understand how the service provider handles this procedure to ensure that redacted text is removed from the Tiff or PDF image file, as well as, the text/metadata files;if applicable.

Privilege and Confidentiality Logs

As you are applying redactions to documents within the review platform, is the application tracking this information to, among other things, automatically create Confidentiality Logs that correspond to the redactions on produced documents? Further, are you able to apply redaction codes to the redactions that are categorized and detailed in the Confidentiality Log?

Likewise, when you code to withhold a document from production due to privilege, are those codes automatically generating Privilege Logs, complete with privilege codes and any other supporting information that you may want to associate with each record withheld from production? This functionality is typically integrated into today’s sophisticated review platforms; it would be best to fully understand how your service provider handles these Logs and to what extent the functionality is automated.

Batch Printing, Download or Emailing

The system should have some functionality to print and/or share documents offline. Be sure to understand what capabilities you have available and any limitations or possible hardware or software requirements. Also, ask if your documents can be printed with overlays and bates numbers?

Administrative Functions

Administrative functions in the system should include the ability to:

  1. Create new users and assign passwords.
  2. Apply security to the dataset(s) as needed.
  3. Generate review sets and dynamically assign sets to reviewers.
  4. Monitor productivity of users.
  5. Monitor review set completion.
  6. Monitor consistent coding of parent emails and their attachment(s), as well as multiple versions of a duplicate document that is reviewed by different document coders.
  7. Create your own production sets. If not, can you review the production sets prior to bates numbering?

Reporting

The review system should allow you to effectively manage and report on your review team and document set. These reports should be produced daily or, even better, support a dynamic report generated through the administrative function in the system. At a minimum, it should provide the following reports:

  1. Daily User Productivity report that tracks the volume of documents reviewed and tagged by each reviewer.
  2. Daily User Productivity report that tracks the volume of documents tagged as Privileged, Responsive or Not Responsive, by each reviewer, to assist with quality control screens and to identify areas where supplemental training of reviewers is necessary.
  3. Daily Documents Reviewed report to monitor the volume of documents completed and the volume of documents remaining.
  4. Data reports breaking out the review data by multiple criteria: custodian, date range, recipients, etc.
  5. Search term frequencies reports.
  6. Production tracking reports.
  7. Privilege Log creation.
  8. Confidentiality Log creation.
  9. Chain-of-Custody reports.

Joint Defense

If you are part of a joint defense group, you need to assure that the service provider you select can handle multiple parties and provide effective security to the data being used by the multiple parties. Specifically, each law firm may want to ensure that their document tagging and notes are not visible by other parties.

Other Review Features

Other review features that are not essential, but that are certainly beneficial may include:

  • Hit highlighting
  • Concept searching
  • Auto-categorization
  • Email threading
  • Email visualization tools

Metadata

The review platform of choice should provide access to the metadata contained in the documents. This is the case whether you are doing a native format- or image format-based review. Depending on the nature of the case and the issues at hand, the metadata may be extremely important. Consider a situation where there is an allegation that an email has been altered or falsified. Analysis of the metadata for that email will verify where and when the message was sent, where and when it was received, and the size of the message.

Metadata is typically described as data about data. There are three sources of metadata. Most often we think of it as the operating system data that appears in Windows Explorer when you view a file list (title of document, date created, date modified, size, folder name, etc.) and the “Properties” of the document (original author, page count, template used to create, date printed, etc.). E-mail metadata contains even more information regarding the creation, forwarding information, delivery path and receipt of the email.

Metadata is also the data found in the body of the document such as comments inserted by the author, document deletions and/or revisions. This type of metadata is viewable in a native document with just a few mouse clicks. Depending on the review platform being used and whether you are viewing native documents, html rendered documents or TIFF/PDF files will impact your ability to access and review this information.

A review platform should not only accommodate the display of this data for review, it must also allow for searching of the data in conjunction with, as well as separate from, the text of the actual document. The system should also allow sorting by these fields for ease of organization and review.

Another issue to consider regarding metadata is the ability of the service provider’s platform to ‘normalize’ the metadata fields for ease of searching. A single document collection may have MS Word documents, MS Excel, Adobe PDF, MS Powerpoints, RTFs or plain text files as well as email. Each of these software applications contains metadata, but the naming conventions used for their individual metadata fields are not standardized.

To make things even more complex, different versions of the same application may also use a different naming convention. This may result in metadata fields with labels such as: Creation Date, Created Data, Created on, and Create date. Intuitively, we all know that these field names mean the same thing, but computers, as smart as they may be, are not that intuitive.

It is critical that the service provider’s platform or conversion process have the ability to normalize these field names and offer one aggregated date field for searching and sorting purposes. It is also imperative that the service provider retain the original naming convention so that when the data is produced, the original name can be used in the load file or other accompanying documentation.

Comments and revisions made to documents can be incriminating or exonerating, so ignoring them can be potentially damaging. Comments and revisions must not only be reviewed for responsiveness, but also for privilege. The review platform must allow this data to be easily exposed to the reviewers, either in a native application or in the accompanying data load file.

IT Considerations

IT issues need to be thoroughly reviewed and discussed before selecting an in-house review platform or a service provider review platform. This will assure you that the system is compatible with your internal infrastructure (see Planning the Review). Any service provider should be able to provide you with a list of its system technical requirements so that you can review them with your internal IT department.

Typically, it will be necessary to have your internal IT group approve any software applications being installed within their network environment (an in-house solution). In addition, they will likely have a standard evaluation process which your selected service provider will need to follow.

It may not be necessary for a service provider to go through a rigorous process since access is typically through your internet browser, but at a minimum you should discuss the following IT related concerns:

Disaster Recovery, Security and System Performance

Hopefully a catastrophe never happens, but you must be aware of the contingency plans your service provider has in place in case the unforeseen does occur. You need to understand the security around their physical plant, their employees and their data center. Questions to ask include:

  1. How is the database architecture configured?
  2. How often are backups of the system taken?
  3. Where are these backups stored?
  4. What are the recovery procedures and costs for a recovery?
  5. What is your average downtime per month?
    1. For maintenance/system upgrades?
    2. For other outages?
  6. How are the systems monitored?
  7. Does the service provider provide a Service Level Agreement (SLA) for support, uptime, etc?
  8. How do you screen your employees?
  9. Is your physical plant locked at all times?
  10. What security is there on your internal data center?
  11. What security does the online system provide?
  12. How is access to the system granted and by whom?
  13. What security is available (Terminal Services, SSL, VPN or other)?
  14. How often are passwords required to be changed?
  15. What preventative measures are in place against hackers?
  16. What preventative measures are in place to prevent your data from being accessed or viewed by their other clients?

Configuration of Reviewers’ Machines

You need to understand if the service provider’s system requires any special hardware or software on the reviewers’ machines.

  1. Are there any downloads necessary in order to view or access the data (i.e. java applet, viewer, etc.)
  2. Are there browser requirements or configuration settings that need adjustment?

Internal restrictions

It is possible that your internal infrastructure may present some roadblocks to accessing the service provider’s system. If this is an in-house solution, you will need to work closely with your IT group as noted above. If it is a web-based solution, there may still be potential issues. Be sure to review these with your IT group and service provider.

  1. Does your IT group have any internal restrictions for viewing or accessing documents over the internet?
  2. Does your internal document management system automatically intercept documents viewed through your web browser?
  3. If you are going to be printing and downloading documents, does your internal firewall have any restrictions that may impede the process?
  4. How does your virus checking software work and will it impact the viewing or downloading process?
  5. What bandwidth capacity (e.g. T1, T1, metra Ten, etc.) do you have to the internet and, based on the number of concurrent reviewers you estimate having, will you have sufficient bandwidth to support the electronic discovery matter while still supporting the balance of your enterprise?

In-house Support

Is your internal IT team available for user support to resolve these and any ongoing IT related issues?

Service Provider Considerations

There are many factors beyond price, processing capabilities and system features to consider when selecting a service provider. Of course you want a service provider that is knowledgeable, experienced and responsive to your needs, but you also want a service provider that is financially stable and is still going to be around two or three years from now when your case finally gets to court. The following outlines several key areas to examine during the selection process:

Experience, Stability & Longevity

How many years of experience does the service provider have and how many of those years were spent doing electronic discovery? Many print vendors have moved into electronic discovery fairly recently and may not have the depth of experience that you require (or want) for your project. Be sure to ask about the nature of projects they have been involved in, how much electronic data they have processed, what types of data they typically deal with, how they run their productions, etc. Perhaps the most important step you can take is to get references for their electronic discovery clients and call those references for their input.

It is also important to understand the financial stability of the company. There has been considerable consolidation within the industry of late, and more likely to come. A pending merger or outside investment may distract the company from its core business. Be sure and understand how the company is financed and whether it is profitable, recently merged or perhaps even struggling. The bottom-line here is to be sure your service provider is going to be around for the entire life of your case.

Technology Offering

Is the review platform that your service provider is offering one that is proprietary, licensed, or “brokered”? For some, this distinction may not matter, but to others it may have a significant impact on their electronic discovery matter.

Service providers that offer proprietary review platforms also typically have in-house development and support resources to support their application(s). While the service provider may not always be willing to integrate user requests into their code as enhancements, they typically have the greatest ability to be able to should the client make the request, and should the user request benefit the workflows of the specific matter, as well as of the service provider’s business as a whole.

Service providers offering “brokered” software typically represent a group of service providers, aligning the most appropriate review platform with the specific matter at hand. While these service providers may have the greatest flexibility to bring you the most appropriate software, they may have the least amount of influence over the owner of the code to incorporate any user requests into the application.

Service providers offering licensed software typically fall somewhere in the middle of this spectrum. They may have more influence over the owner of the application’s code than the service provider who “brokers” applications (due to contracts, committed fees, etc.), but as they do not own the code they still have to rely on someone else to make the ultimate decision regarding the benefit of the user request to the application itself.

Ultimately, there is a balance between the pros and cons as to what each of these service providers can offer. It is your responsibility, therefore, to understand the range of power each service provider possesses.

Project Management Skills and Knowledge

The project managers, or in some cases account managers, who oversee the day-to-day work on your project are your lifeline into how the project is going. You should question the service provider about the project management team that will be assigned to your job. Find out who will be assigned and ask for information on their backgrounds. Determine how many years of experience they have, not only in electronic discovery, but in litigation support. What is the make-up of the team? Do the project managers have assistants who help with some of the day-to-day work? What technical support do they have to resolve technical issues? The manager should know and be able to work with your internal tools such as Concordance, Summation, IPro and other litigation support applications. Ask for a dedicated project manager for the life of the case to prevent turnover.

Your project manager should also be experienced in standard project management practices and techniques such as proper client communications, project tracking and status reporting. Ask how often you will receive status reports and set a schedule up front if the project is predicted to be long and/or complex.

Depending on the nature of your project, your project manager may need to have a fairly high level of technical experience. At a minimum, he or she should have easy and immediate access to IT personnel, developers or system engineers that can supply answers to your technical questions.

It may or may not be important to you where your project manager is physically located. As long as the service provider is willing to accommodate your work hours, this should not present too much of a problem, but certainly consider it during your selection.

Flexibility

Often the needs, direction, deadlines and deliverables may change during the course of the Review. It is essential that service providers are flexible and have a formalized change process in place to track and record changes made to the original specifications.

Support

The level of support you receive from your service provider is critical. Find out what the hours of support are and what it means when a service provider says they have 24/7 support. Does that mean you get a live person on the phone whenever you call, no matter the time, or do you get an answering machine or pager? Every minute can be critical when you have a large review team working 20-hour days.

Who is going to answer the phone when you call? How knowledgeable is that person? Your dedicated project manager is not on duty 24 hours a day, so understand the chain-of-command and escalation policies and procedures when they are unavailable.

Obviously, your service provider should be thoroughly knowledgeable about their own tools, but gain an understanding of how technical your service provider is – are they familiar with supporting applications like IConnect, SummationBlaze, Concordance FYI or other applications normally used by your firm? It can only be helpful to you in the long run to work with a service provider that can provide advice across the board.

Finally, does the service provider have a service level agreement or its equivalent in place that outlines the specific level of support and procedures for the support team? If not, ask for one.

Training

Be sure and get satisfactory answers to the following questions regarding training from your service provider:

  1. What training does the service provider provide to you and your team?
  2. Does the service provider charge for training?
  3. Do they provide separate administrator training from reviewer training?
  4. Do they provide onsite training?
  5. How about ongoing training for new employees?
  6. How often do they release ‘new’ versions of their software and do you get training on the new features? Is there a charge?
  7. Do they provide training manuals that cover all aspects of their system?
  8. Does the manual provide definitions for the service provider’s specific terminology?

Cost Considerations

The desired outcome of any electronic discovery investment should be a reduced discovery bill and the more expeditious completion of the discovery effort. Understanding the total cost of electronic discovery requires combining expenses from two primary categories: technology cost and attorney review cost. An estimated attorney review cost can be determined by multiplying the blended hourly attorney rate by the number of total hours required to review all material. The technology cost is the aggregate of fees associated with collecting, processing and hosting data in addition to any software expenses related to the review of documents. Project management and/or consulting fees related to this technology can be included in the technology cost.

An obvious factor in selecting the appropriate service provider for your electronic discovery review is the direct costs involved in choosing that system and the potential cost savings that can be gained through tools or features the system offers. The associated costs for collecting, restoring, processing and producing the electronic data are covered in those respective sections. Costs and cost savings associated with the actual review process or methodology may include:

Monthly Hosting or User Access Charges

These charges could be based on factors such as:

  • Per file
  • Per megabyte/gigabyte
  • Per page/image
  • Per named user
  • Per concurrent user

Project Management Fees

Project management fees charged by a service provider may be extreme if the matter is complicated and you require daily assistance in administering the site. Be aware of what those charges are, monitor them closely and negotiate a flat monthly fee if possible.

Universal Viewer or Application Software

If files remain in their native format, a universal viewer will be required that can render the file in a readable format to the reviewer, located either on the reviewer’s system or on the service provider’s system, accessed through a Citrix-type connection. Alternatively, individual copies of each potential software application will be required, again, either on the reviewer’s system or on the service provider’s system. While costs can potentially be minimized with a universal viewer, there may be technical limitations associated with such viewers. They may not have the capability to view the metadata or features such as hidden text, hidden rows, comments, embedded or linked graphics.

Impact of File Formats on Review Speed and Efficiency

The format of the files can also potentially affect the speed or efficiency of the individual conducting the review. Advantages in terms of speed, and therefore reduced costs, can often be realized if the reviewer works in a uniform environment. If they are continually working with TIFF/PDF images or renderings through a universal viewer they will become comfortable and familiar with the software features and controls such as page up/page down, end/beginning, zoom etc. This efficiency may drop however if a reviewer is in native applications and switching between spreadsheets, word processing files, databases, etc.

Redactions

Most review applications developed by litigation support service providers today include features that allow for blackouts or other redactions to be applied to the images that will ultimately be produced to opposing counsel. While some limited redaction features have recently become available for native word processing files, this is not the norm today. This represents both a technical and cost consideration for reviewing in native format.

Keyword Searching

Keyword searching can be used to automatically flag potentially relevant or privileged documents (or conversely to exclude documents that do not need to be reviewed). Examples would include searches on subject matter, mentioned names, date ranges, etc. Using these automated approaches can significantly decrease costs by either excluding a large percent of the population or increasing the efficiency of the reviewer by highlighting the terms in context. See the Emerging Technologies section for recent advancements in searching and organizing the data for review efficiencies.

Grouping Similar Document Types

Grouping of similar document types (contracts, drawings, reports) can also result in a quicker review process as the reviewer gains familiarity with the documents and understands what they are seeing. In addition to grouping on document types the system might also be able to group on attributes relative to the collection. In other words, all files collected from the Accounting Department can be funneled to one set of document reviewers whereas all files collected from the R&D Unit might be sent to other more technical reviewers. Familiarity, understanding of the information being presented and uniformity, all lead to increased efficiency and lower costs.

Training and Support Costs

Training and support costs charged by a service provider should also be factored into the decision. Some service providers offer these services free of charge but some may charge nominal fees. Most service providers will charge extra for expedited or rush services, so planning ahead to contain those costs is essential.

When to Evaluate Service Providers

We encourage you, whether you are a law firm or a corporate law department, to evaluate and pre-qualify service providers prior to potentially needing to retain them. Having the opportunity to evaluate them in a more controlled environment will allow you to approach the selection process in a more controlled, methodical manner than often exists once a subpoena or discovery request has been served.

Your selection committee should be cross-representative of your organization – business, legal, records and IT. This will provide you with the insights and information you need to ask the appropriate questions of the service providers, and to evaluate them accordingly.

This type of selection process will allow you to review the qualifications of a number of different service providers and, potentially, to pre-qualify a variety of different service providers who may not all have the same characteristics or provide the same service offerings. Having a “stable” of qualified service providers affords you the flexibility to align the appropriate service provider with the specific matter, if and once that matter arises.

Using the selection criteria identified above, you and your selection team should be able to identify service providers that would be appropriate members of your electronic discovery team.

[updated Jan. 30, 2008]

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