Principle 4 - Sound Process

4.1. Principle

Service Providers should use technology and methodology appropriate to meet their clients’ needs.

4.2. Corollary

Clients have an obligation to attempt to understand sufficient technology to be “informed consumers.”

4.3. Best Practices

4.3.1. Competence

Service Providers should exercise reasonable diligence to remain competent in the rapidly developing technologies and methodologies available for e-discovery.

4.3.2. Identifying Needs

Service Providers should ask probing questions to help clients identify their actual needs.

4.3.3. Presenting Alternatives

Service Providers should present alternatives to clients so far as those alternatives are available or disclose any limitations on their authority to present alternatives.

4.3.4. Consultation Before Using Less Appropriate Options

Only after full consultation with a client should a Service Provider accede to a client’s demand to use a technology or methodology that is not appropriate to the task or tasks at hand.

4.3.5. New Technologies and Methodologies

If more information becomes available to a Service Provider or if a new technology or methodology comes to the attention of a Service Provider or if the initial assumptions come into question during the pendency of a project, the Service Provider should consult with the client concerning options to modify the project.

4.4. Discussion

Unsophisticated clients frequently have heard about methods of working with electronic information or have used a certain software application exclusively for years. Consequently, they will ask Service Providers to process, to prepare data for review, or to review data using a specified technology or methodology. Many times, this technology or methodology is not as well suited for the client’s purposes as a different technology or methodology.

On the other hand, Service Providers have a responsibility to keep their knowledge of technological modifications and improvements current. With the unification of the industry, where a Service Provider may have proprietary applications that it, understandably, recommends almost exclusively, a question arises as to whether the Service Provider ought disclose that other products are available.

4.5. Examples

4.5.1. Competence

4.5.1.1. Example

There are ample opportunities for Service Providers to remain up to date on improvements in technology and methodology including groups such as EDRM and The Sedona Conference. Publications such as Law Technology News are provided at no cost to anyone who wishes. Events such as Webinars produced by technology companies and meetings such as LegalTech give Service Providers methods of remaining current.

4.5.2. Identifying Needs

4.5.2.1. Example

Client contacts Service Provider and asks Service Provider to convert electronic documents to searchable Adobe PDF format. Service Provider has an obligation to ask Client such questions as how much data it has, what type of documents it has, what it intends to do with the converted documents. After a dialog with Client, Service Provider has an obligation to suggest other technologies and methodologies if they will be more appropriate. However, since Client may be relying upon Service Provider’s expertise, Service Provider must be cautious not to overwhelm Client by presenting too many alternatives.

4.5.2.2. Example

Client contacts Service Provider and asks Service Provider to process native files and to perform objective coding of documents to include standard fields. All the fields Client desires will be extracted through processing using Service Provider’s tool. Service Provider may not sell coding services to Client that would duplicate work that the processing creates automatically.

4.5.2.3. Example

Same as 4.5.2.2. Service Provider should, however, attempt to determine what Client needs once the metadata is extracted and help Client meet those needs.

4.5.3. Presenting Alternatives

4.5.3.1. Example

Service Provider’s Proprietary Software Application A will perform the necessary task as well as any other software, Best Practice 4.3.3 does not require the presentation of any alternatives as those alternatives are not actually available to surpass the value of PSA-A. However, the Service Provider should disclose that PSA-A is proprietary to Service Provider and other Service Providers might recommend a different product.

4.5.3.2. Example

Sophisticated Client seeks processing for use in its litigation support database. Service Provider realizes that a different litigation support or review platform would serve Client’s needs better. Service Provider should help educate Client on different technologies.

4.5.4. Consultation Before Using Less Appropriate Options

4.5.4.1. Example

Same as 4.5.3.2. After Service Provider explains the different technologies, Client decides to use its existing technology. Service Provider may protect itself by writing a letter (or email) to Client explaining the differences and potential difficulties/savings again prior to beginning work.

4.5.4.2. Example

After full consultation between Client and Service Provider, Service Provider determines that Client wishes Service Provider to destroy evidence relevant to existing litigation. Service Provider may not perform those services.

4.5.5. New Technologies and Methodologies

4.5.5.1. Example

Service Provider begins processing data. Based on Client’s understanding of the parameters of the data, Service Provider and Client have agreed that the data will be reviewed using a linear review tool. Once processing begins, it becomes apparent that the volume and time constraints make conceptual review more appropriate. Service Provider must consult with Client again.

4.5.5.2. Example

Service Provider is hosting 200 gigabytes of data for Client to review using Service Provider’s proprietary application during litigation. Litigation ends and there is no need to continue hosting. Service Provider must explain the options to Client for retaining the data at a lower cost.