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The Festivus Airing of Grievances: eDiscovery ALSP edition

“I’ve got a lot of problems with you people and now, you’re gonna hear about it!”

So said Frank Constanza in an episode of the NBC sitcom, Seinfeld. Over the last couple decades since this famous episode, wherein Frank revives the holiday he invented called “Festivus,” we can’t help but think maybe Frank was onto something.

Sure, the Festivus “airing of grievances” isn’t quite as cheerful as hanging up stockings or drinking eggnog, but sometimes it needs to be done. This is particularly true in the field of eDiscovery and Alternative Legal Service Providers (ALSPs).

Over the last decade, eDiscovery has been through a period of rapid growth. As more and more savvy entrepreneurs see the profit potential of the industry, the more we see clients that have been burned by other service providers who cared more about their bottom line than their clients.

We have a bone to pick with those companies. There’s absolutely no reason why making money has to come at the cost of the clients, and we don’t want attorneys thinking they should just accept it.

Grievance #1: Not billing based on actual time.

Some service providers bill based on how much they anticipate a job should take rather than long a job actually took. You might even think “gee, that’s nice! I don’t have to pay extra when my vendor takes more time than a task should take.”

The flip side of this is that if your service provider estimates a job should take 3 hours but it only takes 30 minutes, they’re pocketing the rest. The client is quite literally paying for hours of labor that never actually happened. Therein lies our grievance. If the party that’s in charge of deciding how long a job “should” take also stands to profit from overestimating, that’s not exactly a system of checks and balances.

Another issue here is the increments of time vendors use. Some won’t break down their billables into anything smaller than an hour, meaning that tasks taking 31 minutes are sometimes billed as a full hour. Do that enough times over a large complex matter, and it adds up to a huge sum of money that once again, is for work that never really happened. For this reason, Contact bills in 15-minute increments to ensure the time our clients pay for lines up with the time the job actually took.

Do the work. Be honest with your clients about how long that work took and bill accordingly. Is that so hard?

Grievance #2: Overcollection

Collecting all the data under the sun is a great way for vendors to pad their check. So much so that they sometimes go ahead and do this even when there’s a miniscule chance that all the extra data will help their client’s case.

In eDiscovery, the amount of data that makes it through each stage of the EDRM affects how much money the client spends on the next step. If your vendor collects a lot of data, then your vendor can charge more for hosting and processing; if the vendor doesn’t narrow down THAT population of data, you continue to spend even more on review. Because collection is one of the earlier steps in the process, there’s huge profit potential for unscrupulous vendors who collect unnecessary data and move it further downstream even when the client will likely never see any ROI.  

For example, does it really make sense to collect a custodian’s iPhone AND their iPad when the devices likely hold similar information that can also be collected remotely from an iCloud backup? Some vendors might know darn well that the majority of what they collect will be redundant, yet they’ll still charge a client to do the collection and bill them for the hours it took to dedupe everything.

Like any other aspect of a legal case, the collection approach is going to vary. Sometimes it does just make sense to collect a lot of data; however, a good vendor with a strong forensics department will weigh the costs and potential rewards of collecting different sources and build a cost-effective strategy. They may even be able to steer you towards data sources you didn’t think of collecting that are more likely to hold relevant information you’re looking for, allowing you to reduce the total amount of data you collect.

Grievance #3: Collecting/elevating bulky files for no real reason

Oftentimes, service providers charge their clients on a per-GB basis. Naturally, some file formats are going to take more GB than others. Photos take more data than text files; audio files take more data than photos; video files take more than audio; there are also many other industry-specific file formats that fall outside the realm of pdfs and jpegs.

As mentioned above, every case is different and sometimes bulky files (i.e. expensive to host and process) just come with the territory. However, bulky files also provide a convenient way for money-grubbing ALSPs to charge clients more without providing more value.

Sometimes those files hold irrelevant information that could be eliminated from the data population. Other times, the same information can be converted to smaller file sizes that would save the client money, but the service provider chooses not to because they care more about a short-term profit than building a long-term relationship with their client.

Grievance #4: Not caring enough about their cases’ outcomes

Attorneys need to create positive outcomes for their clients. Sure, no attorney can feasibly deliver the outcomes that clients want 100% of the time, but they need a high-enough success rate to build and maintain a good reputation and keep their business alive.

This isn’t necessarily true for eDiscovery vendors. For many ALSPs, the outcomes of cases don’t affect the bottom line as much as you might think they would. Assuming a company handles data in a timely manner without any spoliation issues, they can still make a pretty good buck and keep their reputation alive, even with a “losing record” in terms of those actual cases. Too many service providers are content to keep chugging along with this profitable, but lazy model.

Some are content to only return documents that match up with the specified keywords, even if there are others that might help win the case. ALSPs can play defense too. If they turn up documents that undermine their attorney’s current strategy, they can warn the attorney about that vulnerability while there’s still enough time to adapt. The best ALSPs can even help future matters run more smoothly.

 OR they could do none of this and just say “welp, we did our job, here’s your invoice.”

As an ALSP, your client gets paid to win. Ergo, if your services aren’t helping them win, how helpful are you?

What are your legal tech “grievances” this year? Let us know in the comments!

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