Why are we settling for less than exceptional eDiscovery results?
My guiding principle for eDiscovery is simple: eDiscovery always must deliver exceptional value to the client. A general counsel purchasing eDiscovery services should expect nothing less than tangible, identifiable and measurable value. As a trial lawyer first, I see real value as equating to meaningfully better client outcomes.
Controlling eDiscovery cost is obviously a valid goal; as a group, we pursue it every day. However, singularly focusing on delivery of a defensible production at the lowest possible cost is too narrow a perspective. It emphasizes compliance at the expense of value. “Compliance” in the context of eDiscovery simply means a final and defensible document production to the requesting party that satisfies the litigant’s obligations under the applicable rules. Compliance is the avoidance of adverse results.
We expect more. While compliance (at the lowest cost) is necessary, it is not a sufficient return on a client’s eDiscovery expense. Compliance is a minimum acceptable standard. In addition to compliance, we must focus and search for new methods to deliver real value to the litigation team and the end-client. Let’s talk about what that means.
Compliance is Not Value
For an analogy, let’s look at the automotive industry. Compliance for an automotive manufacturer is manufacturing a reliable and safe vehicle that complies with all state and federal safety regulations. About two years ago, my wife and I bought a Ford Expedition. We looked at all the different makes and models and selected the Expedition because of its comfortable third row seating for our large family, the extended length to allow travel and its comfort, appearance and price.
Around the same time as I was buying my Expedition, my father also bought a new vehicle. He was recently retired, and enjoys doing projects around the home. He decided to buy a Ford F150 because it best met his needs and his lifelong desire to drive a big, red pick-up. (He actually gave it a name, a personality and will often speak on the truck’s behalf.)
We both demanded safe transportation from Ford, but we bought very different vehicles based on how we each defined “value.”
As consumers, we expect compliance but purchase perceived value. Value will mean different things to different consumers, which leads to different classes of products catering to these needs. When I bought our family’s Expedition, I focused on how it would make family vacations and trips more comfortable. My father focused on the fun of owning his dream truck. Everyone finds value at the place where cost (how much we are willing to pay) meets our expectations of how we’re going to use what we purchase.
Corporate clients should not buy eDiscovery compliance at the expense of value. Compliance is not the client’s primary litigation goal. Ten years after Zubulake, eDiscovery compliance should be included in the cost of enabling the trial team to achieve better legal outcomes.
Raising Expectations
As a trial lawyer, I have clear expectations for the value my clients should receive from their eDiscovery dollars. Value includes a predictable budget, a superb customer experience (CX), and a crisp, well-documented proof chart. Value means finding the story of the case long before any documents are produced to the other side. Value is not being surprised at a deposition with a document not previously analyzed and considered. Value is leveraging the eDiscovery review as a natural extension of the trial team and client. Most of all, value is whatever facilitates better litigation outcomes for the end-client.
Given the percentage of the litigation budget that is spent on eDiscovery, we focus on translating the knowledge created by the review team into clear work product, and delivering that product to the trial team long before the production goes to the other side. We see this as a critical component to delivering great value.
Companies don’t become great by concentrating only on compliance in their products. Starbucks did not deliver “legendary customer service” only by using safe milk. Pixar did not delight movie goers only by complying with copyright laws. Southwest did not become a huge success only by passing routine FAA safety regulations. Those were minimum compliance. Instead, these great companies carefully analyzed what “value” meant to their customers and delivered it consistently at an attractive cost.
The legal industry should clearly understand the value GCs need and deliver that value as an integral component in each eDiscovery project. For us, that is just part of our value proposition.
The essence of this blog going forward is very simple and will combine all the themes discussed to date. How can eDiscovery deliver real litigation value to our corporate clients? How can we transform eDiscovery to reduce net cost while creating the kind of value that improves litigation outcomes?
We think these are the seminal questions. While we have already provided some of the key insights to reaching the value goal, I hope you will stick with us through the journey as we explore the ramification of those insights.
