In the complex and costly world of litigation eDiscovery, the insource vs. outsource debate has been raging for the past decade. Does it make more sense for corporate clients to continue allowing their trusted outside counsel to manage the eDiscovery workflow in litigation, bring that work back in-house for corporate litigation support professionals to manage, or perhaps insource the work and contract with third-party service providers to get the job done?
At one major American corporation, what appears to be emerging is a more flexible approach that seeks to improve litigation outcomes and reduce cost exposure by calling on all three modalities as circumstances warrant.
“My strategy is designed to help the company realize the greatest value from the highly skilled and valuable attorneys from various law firms around the world who represent us,” said Aaron Crews, Senior Associate General Counsel at Walmart, where he oversees the company’s eDiscovery processes and strategies.
“I believe the highest and best use of our outside counsel is to rely on them for their core skills, things like legal judgment, business counsel, risk assessment and litigation strategy. When it comes to collecting evidence into databases, filtering out tens of thousands of irrelevant documents in eDiscovery, and narrowing the landscape of electronic evidence down to a smaller pool of data that truly needs to be reviewed by an attorney, I feel there are often more efficient ways to get that early case assessment work done.”
Mr. Crews is a member of the The Legal Innovation 2020 Working Group (LI 2020), an invitation-only peer group focusing on innovations in technology and workflow that shape the eDiscovery, litigation technology, and legal information management industries. Following a recent LI 2020 program focused on early case assessment technologies, he agreed to share his thoughts with us on the keys to successfully insourcing certain pieces of the eDiscovery workflow:
1. Start with the right questions. Mr. Crews explained that his team is now asking the same question of every piece of the eDiscovery workflow in a given case: Is this function something that our outside counsel should be doing because they do it really well, or is this something they’re doing just because it’s part of the greater litigation process? “If the answer is the latter, then we apply a series of objective tests to determine whether it would be more advantageous to the company if that function were insourced and – if so – whether it would make more sense to handle the work with full-time employees at Walmart or by partnering with a third-party litigation support services provider,” he explained.
2. Stay flexible. Mr. Crews’ team advocates a multi-pronged approach that uses in-house resources for certain early case assessment work, hands off complex and time-intensive pieces to an appropriate service provider (e.g., forensics investigations, early data assessment, eDiscovery processing, etc.) and then turns to litigators from a trusted outside law firm for more complicated elements of the workflow. “We always want to remain flexible enough to make sure we’re applying the right model to the right need,” said Mr. Crews. “You can’t get stuck with a single prism through which you view all insource/outsource decisions in eDiscovery.”
3. Internal buy-in. “Before making any changes to the way the company has historically managed litigation, it’s important to identify potential sources of resistance both inside and outside of the organization,” said Mr. Crews. “Once that is mapped out, you can concentrate on securing the participation of those individuals in the planning of your new strategy. You’ll need that buy-in from key people in order for the company to remain committed to the idea of insourcing certain functions that have been historically handled by outside counsel.”
4. Know thy costs. It can often be very difficult to wade through piles of invoices and trace expenditures throughout a global corporate legal department – but it’s essential if you want to succeed. “Not only do you need to know what those costs are in order to make the best possible decisions on insourcing or outsourcing work, but you’re also going to need that data in order to measure how effective your new approach has been in bringing down costs to the company,” said Mr. Crews.
5. Incremental moves. “I have a simple motto around here: Think Big, Start Small, and Move Fast,” explained Mr. Crews. “The idea is that we want to prioritize our tactical initiatives and then just pursue a few chunks at a time. This allows us to make progress, realize some results, and keep the momentum going as we re-think how we manage eDiscovery and litigation management.”
The LI 2020 Working Group gathers for monthly virtual meetings in order to be engaged and educated on evolving trends that impact legal business models. The LI 2020 initiative is managed by The Cowen Group and is underwritten by LexisNexis.
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