By Prashant Dubey

Today, we use more than 400 law firms in the US. Like many companies, we are in the process of reducing the number of firms we use and being more thoughtful about how we can achieve efficiencies with preferred providers.

This statement was made in the fall of 2004 by the general counsel of an Arkansas-based retailer with revenues exceeding $250 billion per annum. Any guesses?

Convergence, as defined by Merriam-Webster, is “the act of coming together or uniting in a common interest or focus.” Sounds grand. Talk to law firms left out of the convergence exercise, and they would call the exercise what it truly is: Counsel Consolidation. Actually, it's not really that bad. Over the years, General Counsels have realized the inevitability of narrowing the number of outside law firms they use for legal advice. Law firms have come to terms with the fact that they need to differentiate their services by more than the golf handicap of the managing partner. The net result is that Counsel Convergence efforts have matured to the point where, in all likelihood, they are collaborative exercises (b/w GC and law firm) versus combative exercises. This is good.

Here's the issue: Once the list of outside law firms has been pared down, the desire to reduce cost does not dissipate - nor should it. In the domain of managing litigation and non-litigation related discovery, it is no secret that there is much money to be saved. After the euphoria of counsel convergence wears off, many corporations say to themselves “well, why don't I take control of my discovery processes across this smaller list of law firms, so I can centralize and save money?” It's not so straightforward. Mistakes are very easy to make, resulting in no net cost decrease and significant increase of litigation risk.

Here's why. Many corporations do not put the same thought into Discovery Workflow Convergence as they do Counsel Convergence. Furthermore, there are some critical success factors, illustrated in the diagram below, that are often ignored:

1. Collaborate and Control: It is not bad for in-house counsel to want to achieve control over their discovery workflow. After all, it is their evidence that is being collected, reviewed and produced. Problem is that they cannot conduct discovery without outside counsel. O.k. perhaps, but not likely. At the very least, outside counsel will be involved in negotiating the scope of discovery, arguing burden, determining which custodians are responsive to the request etc. More often than not, they are on the hook to complete the actual document production. Unfortunately, all too often, in-house counsel takes a “command and control” approach to controlling discovery vs. involving outside counsel in the decision-making process.
2. Iteration: Something as mechanically complex as electronic discovery cannot be handled in a big bang fashion. Many organizations design a work flow in a “back room,” with the help of high priced consultants, and then implement it wholesale. There needs to be an incremental/iterative approach to taking control of the discovery process.
3. Metrics and Measurement: Attorneys are paid for instinct (as well as thoughtful, well-researched legal advice). As such, many organizations have in-house counsel, especially litigators, who do not fully understand the nuances of electronic discovery. They impose their gut feel on the process rather than rely on metrics and measurement. We have heard all too often: “just implement that whiz-bang artificial intelligence review tool and cut down volume of documents.” A dangerous game.
4. Managerial instinct: On the other hand, overreliance on metrics and measurement leads one to analysis paralysis and possibly - inaction. The in-house legal department, from litigation support to litigators to IT to records managers, knows when something is awry and also has a good sense of what appropriate solutions may be. Instinct combined with metrics and measurement is best.

Corporations seeking to “converge discovery workflow” often view document review convergence/centralization as a key lever. Right they are. Unfortunately, this is not as simple as getting a room, hiring a review coordinator, partnering with a staffing agency for contract reviewers and selecting a review technology. As corporations dig into the mechanics of taking control of document review, they realize the complexities involved. This, combined with the natural resistance they encounter from their law firms, often spins them into inaction. This is where an organized, process-oriented approach is really useful. The following diagram outlines an organized 5-step approach to achieving “document review convergence” as part of a discovery workflow convergence exercise.

Discovery Workflow Convergence takes an organized approach to managing discovery and takes advantage of the outputs of a Counsel Convergence exercise. It is a natural instinct for in-house counsel to want to piggyback a counsel convergence exercise with other “control” initiatives aimed at reducing cost and controlling risk. However, an organized approach, guided by critical success factors is what needs to be taken. In next month's issue of Corporate Counsel, I will outline how this approach can be used to gain control over one aspect of discovery - document review.

About the Author:

Prashant Dubey is the Vice President and General Manager of Discovery Management Services at Fios Inc.