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Choosing An Outside E-Discovery Vendor

Companies that face pending or reasonably anticipated litigation have an obligation to preserve all relevant communications, documents and information. Businesses will be required to produce this information throughout the discovery process.

Failure to properly preserve it can result in serious consequences. 

One way to proactively protect against difficulties in the discovery process is to ensure your company’s document retention policies are up to date now -- before you ever see litigation on the horizon! Be sure you raise and discuss your document retention policies, relevant electronic systems and  e-discovery questions with your lawyers. And be sure your lawyers have a good handle on these issues. Computer

Many companies find it beneficial, or maybe even necessary, to hire an outside vendor to lend a hand with electronic discovery or electronic document retrieval.

Here are a few considerations to help a businesses and their counsel choose an outside e-discovery vendor to help gather electronic documents and information:

  • Make sure company decision-makers work with information technology and legal counsel (inside and outside) in outlining the company’s needs and in making the decision.
  • Ask the vendor if it will be able to work with the quirks of your case.  Be sure to mention relevant discovery and court deadlines, and you may want to ask how they respond if deadlines change, as they often do. Particularly, if you have a potentially large case or suspect data recovery may be complicated, ask the vendor if it has the resources and capabilities to handle the complexities of your litigation.
  • Review the vendor’s policies carefully.  Be sure you and your lawyer understand, or negotiate, what happens with the information retrieved. For example, where is it stored? Exactly who will have access to the data? Does the vendor subcontract any step of its process? You may also wish to confirm your business retains ownership of the data retrieved.
  • How familiar is the vendor with the legal process? 
  • What steps does the vendor take to protect personal, confidential, proprietary or other private information?  (i.e., will confidential information be stored in encrypted form?)
  • A question that may be particularly helpful for your attorney to ask: what is the vendor’s availability outside of regular business hours? 

Litigation is never fun for businesses. But, in addition to maintaining good document retention policies, finding effective ways to manage the discovery process – particularly the challenges posed by electronic discovery – can help make the litigation process go much smoother for you and your lawyer.

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Comments

Important considerations in this process are what questions to ask, how best to compare vendors and what are the important issues that are typically missed in the selection process. In particular, our clients often tell us that they sometimes struggle in the vendor selection phase to be able to best assess the quality and capabilities of a vendor.

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