November 09, 2004

In-House EDD: A Controversial Topic at Best

Ron Friedmann (Strategic Legal Technology), along with Bruce MacEwen (Adam Smith, Esq.), think that bringing Electronic Evidence Discovery processing in-house in law firms (as suggested by this recent Law Technology News article) is a bad idea.

I agree with Ron and Bruce's comments, which I've summarized below:

Bruce's post explains several reasons why law firms should not bring EDD in-house:

1) EDD is not a law firm's core competency (the "stick to your own knitting" Management 101 theme)
2) Evidentiary issues
3) Malpractice issues
4) Highly variable demand and capacity utilization
5) Technology and processes in a constant state of flux
6) Disequilibrium in the state of the EDD industry and its profit margins

To this, Ron adds his note of caution:

"It is much easier to explain and justify a third-party disbursement than a law firmís own time or line item charges (e.g, copying). Clients realize that the EDD space is rapidly changing and can reasonably expect a law firm to seek competitive bids. This does not mean that the lowest price wins; rather, it helps assure a reasonable price for the right services."

To these I'll add a few thoughts of my own:

1) Anything that puts a law firm member on the witness stand during the course of client representation is probably not a good thing. In the case of EDD, I believe it increases one's malpractice risk and the risk of losing cases and clients -- unreasonably so.

2) Consider the conflicts of interest inherent in offering certain ancillary services. This isn't new ground. It's been done before, and here's the best example of its impact: Recall the great "consulting" expansion of the Big Six (now Big Four) accounting firms? These firms discovered that their consulting arm created a number of conflicts.

Section 201 of Sarbanes-Oxley now expressly prohibits a large number of these ancillary services from being offered in conjunction with audit services. Even before SOX, some firms began to spin off their consulting divisions. Maintaining objectivity, especially when it comes to rendering expert services and opinions, is more valuable than most professionals realize.

3) While I know a number of very tech-savvy attorneys, I believe most law firms, and their lawyers in particular, lack the required competence in technical and forensic matters. This probably sounds harsh, and perhaps even a bit jaded, but it's my perception of current state of the legal market. There are always exceptions, and lawyers are generally becoming more tech savvy -- but overall, very few have the requisite tech knowledge in this highly specialized area.

I'll extend this point: Many law firm IT and litigation support departments, in general, are probably not properly trained in the necessary forensic techniques and issues, nor on all of the various client computer systems from which they would need to extract and collect data. Again, I'm talking about the technical proficiency issues here, not the legal ones. While a firm could go out and hire EDD professionals, consider then who will be responsible for managing them and the results. It just doesn't seem to me to be anywhere near the average law firm's core competence. This stuff is tricky, and if you don't know what you're doing, you can end up in a world of hurt in a hurry. Which brings me to my next point...

4) For a reality check, read "Prosecutors Leave an E-Trail" from October 2004 issue of Law Technology News as a good example of in-house EDD processing gone seriously wrong -- in this case, for the U.S. Attorney's Office. While they were fortunate in securing a conviction, it illustrates many of the points above. For a simplistic-yet-drastically more catastrophic result, read "Fax Error Costs EC Ä100m Court Case". While these are probably the more extreme examples of what can go wrong with technology, the sad fact remains that they occurred.

5) As Ron stated, clients pay for outside experts in litigation all the time. Why would they believe a law firm would have a higher or even equal level of experience and objectivity with lower overall costs when compared to an established outside expert/consultant? Also consider that if a lawyer or a client becomes dissatisfied with an expert's services, they can fire the expert and obtain another while maintaining the valued continuity of the lawyer's core services. When the lawyer or law firm becomes the expert, guess who gets fired? Donald Trump would have a field day with his slogan. The lawyer/firm gets thrown out with the bath water.

6) EDD service providers and consultancies have sprung up out of the woodwork, and I expect the EDD market to grow in revenue dramatically as more "core" information in cases is digital. However, like Bruce mentioned, I too expect a lot of shakeout in this market segment. Remember the ASP (Application Service Provider) craze near the end of the dot.com boom? Where are they now? A lot of consolidation and bankruptcies occurred in the interim -- and it all took place in less than five years (I'd say between 1999-2003). There are still ASPs in various markets, including legal, but it was a very turbulent ride that many did not survive.

This isn't to say that all ancillary services are a bad idea, nor should this be taken one way or the other regarding MDP (multidisciplinary practice) in general. These are all controversial issues at best. I'd suggest that one needs to look beyond the perceived gravy train to consider all ramifications, and especially those for the clients. However, I believe most law firms (and their clients) considering this specific service option would be better served in the long run by letting this one go.

However, as a seemingly-paradoxical corollary, lawyers (not just the litigators) as well as their clients need to challenge themselves to become as tech savvy as possible in this electronic era. Only more electronic information is being created, not less. There's much value to be had in the ability to know which questions to ask, how and where to find information, perceive patterns and issues, identify appropriate courses of action, and counsel clients on the associated risks and cost-benefit analyses. Now those are the lawyers and legal staff I want to know.

[As with all my posts, I should clarify that the above statements are made completely in my individual capacity as my own thoughts, and that none of this constitutes legal advice of any kind. You're free to draw your own conclusions. I'm simply applying good old fashioned common sense coupled with my experience in legal technology issues.]

Topic(s):   Electronic Discovery  |  Law Practice Management  |  Legal Technology
Posted by Jeff Beard
Comments

Jeff:

Nice, comprehensive post (and thanks for citing me and Ron). Two questions: (1) If you agree with me that EDD is not an ancillary service that law firms should provide, what are other examples of ancillary services they should indeed provide (if any)? (2) Possibly on a different topic, what e-mail retention policy would you recommend for an F500 corporation? Perpetual? 3 months? 7 days? (And why, of course.)

Bruce MacEwen

Posted by: Bruce MacEwen at November 10, 2004 09:52 PM