Growth of the eDiscovery industry has occurred through new companies, new products, and consolidation. So does a company’s size matter when you’re choosing an eDiscovery provider? Some of that choice comes down to preference, of course, and there are benefits and drawbacks of choosing both large and small vendors.
Software
When evaluating the size of the company that provides eDiscovery, the type of software matters. There are two major classes in eDiscovery: programs used for eDiscovery but weren’t necessarily designed for it (like using Adobe Acrobat to put Bates labels on documents) and purpose-built eDiscovery software. Within the latter, there is software one can own, install, or access using a provider (e.g., iCONECT), software only hosted and administered by others (e.g., Everlaw, Disco, Relativity One), and software that is built into other software (e.g., Purview in Office 365, Google Vault).
Customer Service and Support
Let’s set aside Microsoft and Google as companies that provide software for eDiscovery that really isn’t intended for the industry. If you’re using a solution where the software is hosted and administered elsewhere, users are beholden to their uptime, administration, backups, and other infrastructure controls. This makes the people administering that infrastructure very important, so evaluating the responsiveness of project management and technical support is a key factor.
Ease of use of the tool combined with the volume of customers will typically dictate how well those two areas are supported. If the tool is self-service or DIY and relatively easy to use, an organization may be able to provide quality service without a large number of PMs and IT. For tools where users don’t load their own native data or create productions, a larger organizations for project management and tech support would be necessary to perform these operations.
In general, interactive help isn’t all that present within applications, so tech support may take the form of talking to project managers at the provider after things like updates or new features. Fortunately, eDiscovery software has evolved to have very similar functions so moderately experienced consumers should be able to easily load, review, and produce data.
Scope of Service
The scope of offered services can extend from loading and producing data, to forensics collections, to providing complex project management for things like AI, TAR, or CAL, to performing actual document review on behalf of the client. Forensics analysis and expert testimony can also be available based on the provider.
Additional services like these potentially change the interactions between eDiscovery professionals and these related services. For example, does the eDiscovery project manager have enough experience to manage a forensics investigation, or is that work sent to someone else? In evaluating the size of a company and how well that fits with your eDiscovery needs, the cross-training done by those employees can be very informative. In large organizations, a set of staff might be specially trained for one particular operation whereas in a smaller company it’s likely people wear multiple hats. Narrowed expertise can be very helpful based on your particular case, but a general knowledge of forensics, eDiscovery, trial prep, and other litigation support can be as well.
In the very early days of eDiscovery, many providers converted paper to electronic formats, which may have meant “coding” by manually inputting field data. As paper has become less common for business records and communication (but not disappeared entirely!), this kind of conversion-based eDiscovery is waning. Sometimes scanning is necessary but AI and automated tools to read those documents do most of that work now. The original paper-based shops have either evolved into eDiscovery or moved into other disciplines at this point. However, since the courts haven’t fully adopted the use of electronic documents, there is still a significant amount of demonstrative and exhibit printing that happens in preparation for court proceedings.
There are two schools of thought regarding large service providers and customer service. The first is that as a customer you’re one of many so your voice is part of a larger choir. The second is that there are more resources available at a larger company so theoretically you could have access to more specialized assistance. This includes support all hours of the day or night (which might be important based on where your business is located).
At a larger company, the support may not be based in your jurisdiction, area, or country, and may include multiple tiers. Depending on how quickly you require your questions answered can steer you in a direction regarding support. On the other hand, smaller companies may not have as many staff to answer questions and therefore may not be as suited based on your needs.
Customization and Pricing
Company size doesn’t seem to relate to the flexibility, customization, or pricing of eDiscovery software. One of the biggest factors is where the software is hosted and the data is stored. If a product is hosted in AWS, Google, or Azure, there are fixed costs for computing and data storage that must be passed on to the customer. However, if data is hosted in a private data center or on premises, there is much greater flexibility on how much of those costs are passed through. This directly relates to the deployment flexibility of the tool – some can’t be deployed on your own infrastructure and must be accessed through a web interface. Most allow VPN and remote desktop access to legacy portions of their tool. How the software is designed informs customization more than the size of the company so in general, the business plan of the company is what drives the flexibility pricing and customization more than their size.
Security
As eDiscovery evolved from paper companies to what we have now, the interest in data security has increased dramatically. This includes the performance of a security audit for code for software providers, which is one piece of achieving a FedRAMP certification. Some companies use badges such as SOC audits or ISO standards, but it’s important that regular security auditing and risk assessment are performed. Legal professionals can also use protective orders and agreements to provide security on top of any steps taken by the provider. This is a case where the size of the organization shows that there is a better security infrastructure in place – particularly if that organization is a publicly held company as there are regulations and other rules that dictate their requirements. Insurance is another factor that can fall under security – do they have error and omission or just general liability or cyber liability as well? Even smaller eDiscovery providers should be able to talk about their security practices.
Conclusion
New companies, new ideas, new workflows may be scary whether they come in small or large packages. But if customers understand their particular needs and spend the time to understand what a company is offering, the number of employees at an eDiscovery provider should be a lesser consideration. Indeed, by considering all types of providers, legal professionals might find significant time and cost savings. This is especially true as generative learning is integrated into eDiscovery companies. Size matters less than whatever actually works for your project.
Dr. Manes routinely serves as an expert witness including consulting with attorneys on data preservation issues. He contributes academic content to peer-reviewed journals and delivers classroom lectures. See his full CV at gavinmanes.com.
Dr. Manes has published over fifty papers on eDiscovery, digital forensics, and computer security, countless blog posts, and educational presentations to attorneys, executives, professors, law enforcement, and professional groups on topics from eDiscovery to cyber law. He’s briefed the White House, the Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues.
At the University, Dr. Manes formed the Tulsa Digital Forensics Center, housing Cyber Crime Units from local, state, and federal law enforcement agencies. He’s a founder of the University of Tulsa’s Institute for Information Security, leading the creation of nationally recognized research efforts in digital forensics and telecommunications security.