eDiscovery Tug of War: A Breakdown of the In-House vs. ALSP Debate, Part Two

Editor’s Note: I’m excited to welcome Jim Gill, Principal of Unpaved Marketing, as a new author for eDiscovery Today!  Jim has been blogging about eDiscovery topics for several years and is a JD Supra Top Author award winner multiple times!  A more complete bio for Jim is at the bottom of this post.  Jim will be contributing posts periodically with his unique perspective on the industry (and give me a writing break in the process).  Welcome, Jim!

Part One of Jim’s post was published last Thursday, here is the conclusion of his two-part post.

Here’s Where ALSPs Come In

There is no doubt about the rise of ALSPs. In a recent ACEDS webinar I did with Brad Blickstein and Mike Quartararo, Brad shared some statistics from his 2020 Law Department Operations Survey. In fact, the use of ALSPs for Document Review, Data Collection, Data Processing / Hosting, and Technology Assistant Review (TAR) / Analytics all saw significant increases from 2019 to 2020.

Going back to thinking about my personal outsourcing of work, there are a few things I have consistently paid to have someone else do when it comes to repair, all of them on the automotive front, and all for different reasons. Those reasons provide an interesting overlay for why one looks for an outside vendor in eDiscovery as well.

Specialized Work: For this area, I’m thinking of windshield and tire replacement. Both of these require specialty tools and training, and while you can often find perfectly good windshields and tires in the salvage yard, by the time you go through the trouble sourcing them, then doing the work, each of which carries a increased risk of not going well if not done by a trained practitioner, it’s just not worth the trouble. Discount Tire will have you in and out within a few hours and include a road hazard warranty cheaper than you could do it yourself. A mobile auto glass company can replace the windshield in the parking lot of your office while you work, and they’ll guarantee it if it leaks or the seal isn’t good. For these, it just makes sense to outsource.

This is true with eDiscovery as well. An in-house team might be able to handle things just fine on their own if it only involves email and stays below 100GB. But for larger, more complex cases, they might need specialty tools and expertise.

Issues with QC: For a long time, I always changed my own oil. It’s easy, doesn’t take specialty tools, and I can accomplish it in about the same time as a professional. But then quick lube shops started offering oil changes for cheaper than I could buy the oil and filter, so it seemed like a no-brainer. But time and again, the quality of the work performed fell well below expectations. More than once, I’ve experienced drain plugs and filters put on much higher than factory torque specs (which would keep someone from doing it on their own next time). Other times, I’ve been charged for a filter change, only to find the old filter was simply left on and new oil added. I’ve even been told something was wrong with the drain plug and that it would have to be redrilled and tapped, only to find this wasn’t the case after getting under the car myself. Never mind the constant upsells they suggest. Needless to say, I started changing my own oil again. It may be cheaper and seem like less hassle to have someone else do it, but not if you’re constantly having to redo work.

I’ve heard several people within the eDiscovery industry talk about the challenge of service providers who don’t QC their work. It’s why many law firms will conduct second reviews after a service provider has made a pass — they just don’t trust it. Which means if you’re paying to have work done, only to have to pay someone else to check that work, then why bother at all. You may as well do it yourself or pay a little more up front to make sure it’s done correctly.

I Just Don’t Want to Do It: I don’t like washing my car. Of course, I’m capable. Of course, it’s cheaper to do it at home. But I just don’t want to do it. It’s not bad on a warm day. But why bother when I can drive through a wash. Sure, it’s not as good as a hand wash, but it’s just going to get dirty again. But even more than that, I hate cleaning the inside of the car. When I started seeing places that would clean the inside and outside of your vehicle for less than 20 bucks, I was sold. It’s my one splurge.

I’m sure legal teams have their version of this, too. It’s a matter of ROI. Yes, they could do this work in-house, but it’s worth it to have someone take it on, so they can focus on more important things.

Conclusion

Every legal team is different. Every case is different. There are any number of variables that can arise, from the amount of data involved to the types of data requested. A every team has that point where they know they’re going to need help. It might be when data reaches a certain scale. It might be when new data types or legacy ESI come into play. It might be that they simply don’t have the personnel or training needed to accomplish the job at hand. Or it may simply be that they hate doing it.

Which is why these trends of bringing more work in-house, while at the same time, relying on ALSPs will continue. As Marc Zamsky, CEO of Compliance stated in the EDRM / eDiscovery Today 2021 State of the Industry Survey, “Both corporations and law firms will continue to embrace outsourcing infrastructure, hardware and software, with “menu options” that offer multiple technology stacks within an ‘as-a-service’ delivery model. And, I think we’re going to see greater use of a case-specific software implementation.”

A good first step for an organization is to take a look at where that sweet spot is between DIY and Outsourcing lies, while remembering that what works for someone else, may not be the best fit for you. Likewise, technology vendors and service providers should continue creating flexible offerings that meet clients where they are, rather than trying to squeeze everyone into a one-size-fits all solution.

As for me, I’d be happy if they threw in free car washes and interior details with every case.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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