This article covers some interesting takeaways I (Brandon Law) learned during a conversation with Z. Guruli, Firmwide Manager of Discovery Solutions at WilmerHale. It’s not intended to be a summary of our conversation, nor am I attempting to editorialize his comments. Listen to our full conversation here.
Not a Commodity and a Total Commodity
By commodity, I’m thinking of a “mass-produced, unspecialized product,” but this isn’t just some wordplay or arguing semantics as an academic exercise. As I learned from my conversation with Z. Guruli, this is an important question to think about.
Let’s start with Z.’s very useful summary of how the eDiscovery industry evolved:
It was a lot more task based. ‘I need someone to fill the task description. I need someone to look at documents. I need someone to batch the documents. I need someone to prep a production, I need someone to burn the discs…’ Fast forward, what are we seeing now? Now, if you are truly offering discovery services, you have to be more than a task-man and be a practitioner. You have to understand the overall process.
The Industry–and Practitioners–Have Evolved
As the industry has grown over the last 20 years, many of the discrete eDiscovery tasks have been automated and outsourced. Many of the folks who started “in the trenches” have moved into more value-add positions. They know how all the machinery works but that’s not their day-to-day anymore. It’s what Chris Adams of McDermott, Will, and Emery called “the next generation” of eDiscovery practitioners: people with twenty years of experience, much of which was spent doing the commoditized work that we now take for granted.
To use Z.’s word, these are the ‘practitioners.’ A practitioner knows how all the segments fit together. They’re all about integrating systems and explaining how the wrong hand pulling the wrong lever may lead to unforeseen consequences. In other words, eDiscovery is not a commodity.
A Lot of eDiscovery Services are the Same, Right?
Personally, I think many aspects of eDiscovery are in fact commodities. Look at data processing, offshore coding, and first-level doc review. When you compare them under a microscope, aren’t these all mass-produced, unspecialized products?
That’s not to say the components of eDiscovery I’m classifying as commodities aren’t difficult or incredibly important. I mean, corn is a commodity, it’s very important, but I imagine it’s extremely difficult to farm corn efficiently enough to make money and meet ethical and legal obligations.
All I’m saying is, I think some aspects of eDiscovery are pretty much the same, regardless of whom you get it from (assuming, of course, you’re screening for qualified vendors).
However, It’s Also an Art
I think the practice of eDiscovery is a bit like being an airline pilot (at least, what I imagine it’s like to be an airline pilot). Most of the time things are working like their supposed to: every day thousands of flights take off and land with nominal expertise required from the pilot. Every once in a while, something happens–a bird hits the engine and at that moment, you don’t want a rookie at the helm. You want Sully freakin’ Sullenberger. That’s the moment that it stops being a commodity.
Consider Z.’s metaphor from the medical field:
What is the difference between seeing a specialist and someone triaging at the ER? There is a different level of expertise and understanding. Similarly, these days, if you don’t have a full grasp of the entire eDiscovery process and how different pieces fit together, and how mistakes in one segment can be costly in another, it’s hard to fully provide your services to your clients.
In our industry, many cases simply take off and land with little fanfare: Legal Hold, Collect, Review, Produce. But not always. Sometimes a project goes off the rails. If a firm is only set up to manage eDiscovery as a commodity, they may be in a difficult position if and when a bird hits the engine.
What I Learned: eDiscovery is Not One Thing
So, is eDiscovery a commodity? Yes and no. When you look at the elements of eDiscovery that require weathered practitioners–things like predictive coding workflow, software development, project management, or anything to do with eDiscovery strategy–you quickly realize that eDiscovery is anything but mass-produced and unspecialized. It’s an art.
Other aspects of eDiscovery can and should be treated as commodities. Failing to recognize the difference will lead to problems. Meaning, if you treat the “art” aspects of eDiscovery as a commodity, you’ll generally end up with a broken process resulting in a blown budget, missed deadlines, or worse. But, if you treat the “commodity” parts of eDiscovery as art, you’ll end up paying a whole lot more for services, with very little to show for it.
The Bottom Line
Squeeze the costs of commodity parts where you can, but don’t squeeze the entire process, or you risk introducing low-cost “experts” into critical areas. Because when your client’s litigation matters are on the line, you can’t afford to have an inexperienced pilot at the helm.
Thanks to Z. Guruli from WilmerHale for contributing his voice and experience to this article.
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