Eating at the E-Discovery Diner: Buffet or à la Carte?

There is a difference of opinion about the best way for corporations to buy e-discovery services. One view could be characterized as the “single-throat-to-choke” approach which focuses on accountability – the corporation wants to have a single party take complete responsibility for everything from collection through production so there’s no question who’s at fault if anything goes wrong. The other view is a more á la carte approach where the corporation buys services as needed from different providers.

My view is that the single-throat approach results in overpaying for e-discovery services. Corporations can obtain more cost-effective results by having consultants who specialize in using the most appropriate tools for the collection and initial culling and contract separately for the final review for the reduced data set. The corporation can retain full accountability by clearly delineated responsibilities and hand-offs between the two providers.

The collection-initial culling vendor is responsible for gathering initial content and applying early analytics and other tools to the content while keeping detailed logs of what was done, what tools were used, and what culling decisions were made.

In the shared responsibility model, the client specifies the format of files that will be handed over to the final review vendor as well as the method and date of delivery. The final review vendor is then tasked with documenting the steps taken to further cull the collection as well as the delivery date and method of production, including generating privilege logs.

The single vendor approach is like eating every meal and taking every coffee break at an all-you-can-eat buffet. You overpay and consume too much of the wrong things. As a matter of fact, there are many early analytics tools that give early insight into potentially-responsive documents while avoiding the per GB cost model used by most integrated approach vendors. Every GB that is screened out before going to final review can save the corporate client hundreds of dollars per year.

Final review vendors typically have large staffs for help desk, technical support, consulting, and sales personnel, and have major investments in licenses, processing infrastructure, advertising, trade shows, and office space. All those expenses have to be covered to stay in business. By contrast, discovery boutiques specializing in collection and initial culling can be nimbler and offer different pricing models for delivering a comparable or an extended range of early discovery analytics tools.

Note that time and data security are major considerations when deciding what approach to take when contracting for e-discovery services. Many early analytics tools can be deployed and yield results in the time it can take to setup a final review platform, administer passwords, conduct training, and begin to load the initial data. Furthermore, from a data security standpoint, it is much better to screen out as much content as possible before putting content on a final review platform where dozens of people will have access to some or all of it.