In order to innovate, save money, and get value out of your discovery process, it is important to know the typical players and process. These first few posts will help set a common foundation on some basic e-discovery concepts on which we can build in future posts.
In the world of e-discovery the thing most people talk about is the technology. For example, if you head to LegalTech in New York—the industry’s yearly mega-conference—you’ll find company after company hawking the latest gizmo that promises to cut the costs of discovery.
Technology can be very important. Some software in particular is near-essential for certain discovery work. As we work through this knowledge base series we will talk about a lot of different technology.
While some technology might be necessary—and certain technology truly is amazing—we believe that the variable that matters most to a well-run, valuable, cost-effective document review is the people.
Here are just some of the roles your team must play to produce a proper review:
· People who understand the technology to be able to use it effectively;
· People who understand the discovery process specifically and the litigation process generally;
· People who can spot the difference between a good fact and a bad fact and a previously unknown fact;
· People who can identify legal issues and who understand the rules of procedure;
· People who work well together in teams; and
· People who understand the cost drivers of discovery and litigation as a whole.
We will be talking a lot about people, so it is helpful to have a primer on some common terms. Here are some that we will be using throughout this series:
Outside counsel – the attorneys representing the client in front of the tribunal charged with resolving a legal dispute.
BigLaw – a species of outside counsel, typically referring to the largest law firms in the country – those on the American Lawyer 100 (“AmLaw 100”) list of firms with the most yearly revenues. The names are familiar to those in the legal industry – Jones Day, DLA Piper, Kirkland & Ellis, Winston & Strawn, Proskauer, and others. These are the firms that will take the case to trial and lead the matter. They also often conduct the “second pass” or quality control review, retain and supervise the managed review companies, and handle most aspects of the discovery process.
Forensic collection specialists – these companies have the expertise to capture information from a variety of sources (e.g., cell phones, computers, email) in a forensically sound way, i.e., the collection process maintains an unbroken chain of custody for the information and leaves the metadata intact, all of which are important for a proper collection.
Technology vendors – the descendants of the old copy vendors who used to print and/or copy binders of legal pleadings and discovery documents. These companies often have several different roles—processing/hosting data, running the software tools for the document review, and handling the actual production.
Managed review companies - a subset of technology vendors who include within their suite of services first-pass document reviewers who can help sort through the initial data stack.
Staffing vendors – suppliers of temporary employees, including a contract attorneys and legal support staff. These companies traditionally offer the manpower to staff review projects, but not necessarily the review software, outsourcing that component to technology vendors or leaving the choice of technology to the law firm managing discovery.
Managed services companies – a company that manages a number of the discovery-related services under one room, the biggest of them combine everything from the forensic collection specialists, to the technology, to the managed document review services. Increasingly, technology and staffing vendors and managed review companies have expanded the range of their technology and service offerings to compete for business with one another.
Discovery counsel firms – firms that specialize in the discovery process. They often partner with the BigLaw firms to handle the discovery process. They handle everything from pre-litigation consulting, to document collections, to deposition prep, to first-pass review to second-pass review, to managing the managed review companies.
Associates – typically very well-credentialed attorney at a BigLaw firm. Often with 1-4 years of experience. Helps manage aspects of the discovery process, including the second pass review. Average hourly rates in larger markets can average in excess of $400/hour.
Project managers (technology vendor) –a “project manager” can mean different things depending on the context. A project manager for the technology vendor will have expertise in, and manage, the process of ingesting, hosting, and working with the data stack. Usually not an attorney. Typically charge hourly with a typical range of $175-$250/hour for those services.
First pass reviewers (a/k/a contract attorneys, a/k/a “temp” attorneys) – responsible for making initial responsiveness calls to narrow the data stack. Often employed as 1099/independent contractors through a managed review company or staffing vendor They typically charge hourly, within a range of $35-60/hour, for these services.
Project managers (managed review) – a “project manager” in the managed review context is responsible for managing the first-pass reviewers. They help answer questions of the first pass reviewers, conduct the quality control process and other management tasks. Often this person is a full-time employee of the managed review company and is an attorney (or at least has a JD degree). Typically charge hourly with a range of $150-225/hour for these services.
Discovery counsel – often a former BigLaw attorney at a different, smaller firm. Specializes in all aspects of the discovery process, from first-pass review to second-pass review, to deposition prep, drafting review memoranda. Often has more than 8 years’ experience. Typically charge hourly rates with a range of $195-295/hour.
Obviously, you don’t need to know everything about the discovery process or have all these various roles memorized in order to choose partners to handle your discovery needs. But having an understanding of who the different players in the industry are and what roles they play will help you make informed choices. Knowing your specific discovery needs will help you know which roles will provide value and efficiency that will save money on your project – and which roles won’t. As we continue through this knowledge base series, we’ll look to give you the information that will help you make these decisions.
Looking to get a handle on your discovery process? The HG EDGE discovery counsel team is filled with talented attorneys who have innovated and help drive down costs of the discovery process. Contact us today to discuss your discovery needs at firstname.lastname@example.org.
 We will be talking much more about the “data stack” in future posts. But, generally, it is the data you collect that is relevant to a particular case and which is reviewed, narrowed, and from which documents are produced or used in an adversarial proceeding, e.g., trial.