There are myriad factors to weigh when selecting a document review provider to assist in e-discovery, whether for litigation, an investigation or another type of legal matter. These factors are interconnected — a provider’s excellence in one area may factor heavily in their performance in another. Here are things to consider.
1. Quality
Evaluate whether the level of quality a vendor provides is sufficient for the matter at hand. This is a delicate determination requiring that you weigh the risk inherent in the matter and what concomitant level of quality will mitigate that risk. For instance, in an internal investigation, there is little risk that privileged information will be disseminated to an adverse party, meaning quality control procedures around privilege should factor less in your selection process and will not need to be as robust as when dealing with contentious litigation matters.
Quality controls should include some level of statistical evaluation procedures, where sampling is used to ensure the quality of the work product; second-level review sampling, where the law firm is asked to put eyes on a certain number of documents; and feedback tracking and implementation, where client feedback is not only tracked but also implemented throughout the review population, using search and other methods to ensure all similar documents are located.
When vetting providers, take into account not only matter-specific quality control processes but also institutional quality controls. For example, institutional controls will be inherently less robust when the provider uses temporary staffing.
2. Data Security
The importance of data security comes as no surprise to anyone in 2021. Competitor companies, foreign governments and rogue hackers engage in corporate espionage. Your managed review provider must harden operations and stress-test measures relentlessly against such risks. Data security, to be effective, must be concretely defined, properly implemented and audited to ensure, through documented processes, that infrastructure and systems are secure from end to end.
3. Personnel and Training for Document Review
Most document review providers use either a staffing model or a managed review model.
- With a staffing model, resources are typically provided on a project or ad hoc basis, leveraging contract employees hired for the length of the specific project. These contract reviewers are paid by the hour. Permanent employees on the project are generally limited to supervisory or more senior roles. Training provided to contract resources can vary, but is generally project-specific since the return on investment for temporary employees is minimal.
- With a managed review model, typically all staffing is filled with permanent employees. Staff is trained for each project but also at an organizational level. While a provider’s investment and cost for this type of model are high, the provider is then able to gain a truer understanding of employees’ abilities. The managed review provider can nurture those abilities over time. Scalability is a benefit to this model. A permanent employee base allows a provider the flexibility to ramp up or down on a project and reallocate team members where they are needed.
4. Expertise
There are three areas of expertise to evaluate when considering a review provider: technological, legal matter and industry.
It may not be immediately obvious why technological expertise is highly beneficial for a managed review provider, rather than, say, a technology hosting provider. However, a managed review provider’s expertise across review platforms and types of technology is key to ensuring not only an efficient, thorough, cost-effective review, but also data security.
Since different types of matters bring different challenges, you should also consider whether and to what extent the vendor has experience in the type of matter at issue. A provider that has never undertaken a Second Request review will likely be unprepared for the high volume and pace that are hallmarks of those matters.
Finally, experience in the industry involved can be key. The health care and financial services industries are two prime examples where an understanding of the jargon and technical language is important. A vendor without that experience will face a steep learning curve in grasping the underlying concepts.
5. Cost: Per Document or Flat Rate?
As with any product or service, the cheapest option is likely not the one you should select. When analyzing the cost of various offerings, consider whether the pricing is per document or flat rate.
- Per-document pricing has the appeal of providing a clearer understanding of cost upfront, but it potentially incentivizes a vendor to cut corners to ensure profitability. It also can constrict the review to the parameters provided in the per-document pricing structure when a different review structure may be needed based on what is uncovered over time. Get a clear understanding of what the per-document pricing includes, and flexibility to adjust to the inevitable changes that come with document review.
- Flat-rate pricing, on the other hand, raises concerns that the project’s cost could be inflated with unnecessary hours. The correct way to ease this fear is twofold: Investigate the vendor’s reputation in the industry and get a cost estimate for the particular matter. If there are multiple workflows within a matter, request a cost estimate broken down by workflows so you can better assess the cost for the services. Within that estimate, look closely at the assumptions involved in the pricing. Ensuring these assumptions accurately reflect the current understanding of the matter and are a realistic assessment of what is needed should help you avoid surprises in the bill later on.
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