In recent years, there has been a dramatic increase in e-discovery vendors. While having more vendor options to choose from may seem like a good thing, the surge in vendors can make it difficult to differentiate among them, and to compare the relative strengths and weaknesses of each. It is therefore critical that law firms and legal departments who seek to leverage efficiently data for purposes of litigation understand that selecting an e-discovery vendor is more than an isolated transaction and must be approached with some key considerations in mind. Below are a few topics that are worth considering when choosing among vendors.
- Is data security a priority for the vendor? Data security is an issue. Think Marriott, Equifax, Anthem, Yahoo, EmblemHealth, Target … Therefore, before retaining a vendor, it is important to be confident that the vendor has robust security measures in place to ensure data access is controlled. A lack of proper security measures exposes the firm/legal department client’s data to security vulnerabilities. In addition to assessing what security credentials the vendor has (i.e., SOC 2 Type II) you should inquire of the vendor’s employee training and preventative efforts like intrusion detection, data encryption, cloud security controls and penetration testing.
- Is innovation a priority for the vendor? Technology is constantly evolving and so, too, are the data sources that may be relevant for a litigation. For the purpose of illustration, consider text messages. Five years ago there were rarely text messages as a data source involved in litigation. Today, much business is performed via text message. And so, it is critical that the vendor you retain is always innovating and regularly developing new capabilities to address the growing amounts of, and varying sources of, data. At a minimum, you want a vendor whose solution(s) seamlessly integrates with modern data sources so that things like text messages are easy to collect, review and produce.
- Are efficiency and automation priorities for the vendor? There is nothing more frustrating than a review platform that is slow or clunky. When the task at hand is to review 50,000 emails, the time it takes to process the data (including to de-dupe, deNIST, OCR) is a relevant consideration. All of the small delays along the way can easily add up to big delays, big costs, and big concerns. Therefore, it is important to understand the vendor’s infrastructure. For example, what sort of processes are in place such that the time from data ingestion to production is expedient? Similarly, it is worth speaking with existing clients of the vendor to understand any issues encountered with the platform. For example, how is the speed of document to document load time? What artificial intelligence is available to leverage (i.e., predicting coding, clustering). The solution should be efficient, user-friendly and easy to use.
Legal professionals should do their homework before retaining an e-discovery vendor as no two vendors are the same. While there are many areas to explore before retention, the issues of security, innovation and efficiency are critical among them. Asking thoughtful and difficult questions during the vetting process gives legal professionals a greater likelihood for a seamless engagement.
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