The best operating models for driving down eDiscovery costs

The moment electronic messages were recognised as records that could be archived and produced in court (mid-2000s), the technology servicing the legal industry began to evolve. Over the years, the resulting advances have made it faster and easier than ever to search and analyse the terabytes of data today’s organisations store and process.

But, until recently, it has always been a process best managed by outsourced experts.

Now, thanks to recent developments (particularly within Microsoft 365) it has finally become possible for corporate legal teams to bring the entire eDiscovery process in-house.

The question is: Is this really the most efficient and cost-effective option, or are there alternative models that could produce better results?

Pros and cons of in-house eDiscovery

The pros and cons of an in-house eDiscovery model vary from business to business, but these are some of the more universal ones you may encounter:

Pros:

  • Having eDiscovery skills within your team means you can leverage your organisational knowledge and understanding of the matter at hand to streamline your response as required.
  • You have full control over your data, processes and cost.
  • Costs become predictable, monthly expenses (provided no unexpectedly large workloads arrive).
  • Much of the required technology may already be available through your existing enterprise licencing.

Cons:

  • Capacity can be an issue – response may be delayed if the in-house team is already engaged in another matter.
  • In-house eDiscovery can be disruptive to regular operations, particularly in IT where specific skills are needed to act defensibly.
  • It can be difficult to recruit and/or retain the necessary eDiscovery skills at a reasonable cost.
  • Remaining competitive requires constant upskilling of people and upgrading of technology.
  • No external counsel means no access to skills outside of your area of expertise when necessary.

The hybrid alternative

For many organisations, the cons of a fully in-house eDiscovery model outweigh the pros. In these cases, a hybrid eDiscovery model can offer the perfect alternative.

Hybrid models maximise the use of your existing internal resources, knowledge and software to manage as much of the EDRM process as is practical for you. Where those in-house capabilities end, specialist service providers with the necessary expertise and scale can jump in.

Thanks to evolving technology and market demands, there are now plenty of specialist solutions that deliver specific parts of the EDRM lifecycle. These solutions offer greater flexibility, potentially greater specific expertise and accuracy, and far lower costs than their full-service law firm counterparts. (In many cases, they also offer better value than in-house eDiscovery in terms of resourcing and ability to flex on demand.)

Where to DIY and where to outsource in your EDRM

Some portions of the EDRM lend themselves to in-house management better than others. Your organisation’s specific skill sets, tools and functionality, regulatory environment and litigation volumes could influence your decisions on which areas to outsource, as well.

It can be helpful to get an expert to weigh in on what might work best for your environment, but these are a few of the things you should consider.

Identification/preparation

Data mapping is often overlooked in the eDiscovery cost model but can significantly reduce expenses later on in the EDRM lifecycle. Running data mapping exercises is a skillful use of internal resources to benefit a hybrid (or fully in-house) eDiscovery model.

Collections

With the right training and Microsoft licences, it is possible to defensibly complete collections internally before exporting to specialist providers for processing. Laying this groundwork correctly also enables investigatory teams to perform their own early data assessment. This can save considerable time and money on the initial stages of litigation.

Collection and Processing

Alternatively, collection and processing can outsourced to specialist providers like Salient Discovery. We are often able to perform collections and processing with speed and accuracy that is hard for our clients to match internally. (Our right-shored model also means we are more competitive on cost than many UK resources performing the same task, in-house.)

First-line Review

Review can be time- and resource-intensive, particularly if you are not equipped with the right specialist tools and expertise. For that reason, it is often more cost-effective to outsource at least first-line review to an alternative legal service provider (ALSP), rather than attempting this in-house.

Second-Line Review

Combining in-house resources with external counsel is an effective way to optimise costs during second-line and higher-level review. This “best of both worlds” approach enables you to tap into internal organisational knowledge and understanding of the matter at hand while still benefiting from the expertise of a seasoned professional.

Pro tip: Some organisations will also find external counsel especially useful in a general advisory role, helping direct internal efforts in a combined (yet cost-effective) eDiscovery force to be reckoned with.

Where to start

Looking for a manageable place to start taking control of your legal costs? Watch our webinar-on-demand to find out how you can reduce your eDiscovery costs by maximising your Microsoft 365 investment. We share our expertise on using Microsoft Purview eDiscovery and Content Search tools.