Clearing the Jungle: A Buyers' Guide for eDiscovery Consumers

It's a jungle out there, and the eat or be eaten mentality permeates the eDiscovery industry. As the typical size of eDiscovery projects has grown, price compression has eaten away at profits, and competition for new sales is fierce and often furious. There are still big clients and big projects out there, but the budgets are tighter and the consumers are smarter and more focused on the bottom line.

At the same time, eDiscovery is not easy to sell. The most technically savvy individuals are, more often than not, reporting to some higher-level decision makers. The benefits of particular software, services or security can be difficult to express in economic terms, which means that contracts are most often awarded to the supplier who offers the lowest price. It takes a special mix of relationship cultivation, personal connection and technical "fit" to successfully sell these products.

In any sales pitch, some puffery is to be expected. Salespeople are rarely, if ever, noted for their brutal honesty. We all expect a little smoke and mirrors, a bit of misdirection in a sales pitch. It's part of the game, and everyone knows to keep their antennae up and ready when anyone is selling.

Consumers of eDiscovery should be particularly vigilant when receiving sales pitches, given the state of the market and the potential risk. Critical thinking by eDiscovery buyers should include attention to key areas for scrutiny and items of preparation.

Know your scope. The size of your project affects budget, obviously, but there also needs to be a connection to the vendor's capacity and the project timeline. It is crucial to be as precise as you possibly can about the amount of data you expect to process, and to ask vendors to provide high/low estimates based on a potential range of collection sizes. The most common cause of budget excess and extended timelines in eDiscovery is a change in scope. Your best tool for avoiding these unpleasant surprises is a solid estimate of your project's size.

Prepare your questions. As you develop your requirements, frame them into written questions. Form those questions into a checklist and ask vendors to answer those specific questions. Questions about file types, production specs, turnaround time, and specific review features should all be submitted in writing and answers should be collected for your review and reference.

Look out for vagueness. Most vendors will want to leave themselves some wiggle room around capacity, deadlines and budget. Particular attention should be paid to answers which are vague or loaded with caveats. Don't assume that things will simply work out even if the answers don't fill you with confidence. Press for specifics and examine those caveats until you know exactly what you should expect.

Red flag buzzwords. Common words and phrases will appear in RFP responses, proposals and presentations. Take note of them and press at them a bit to ensure you fully understand their contextual meaning. Some terminology to note includes:

• "Scalable" - this term implies flexibility but may also signify that capacity will need to be ramped up to accommodate your project requirements.
• "Technology agnostic" - ideally this phrase signifies that the vendor will utilize whatever software is best suited to your project. Few vendors, however, are that open-minded. Typically this phrase suggests that the vendor offers two or three options and they'll help you choose one of them.
• "Integrated" - this word sounds great but as a practical matter means very little. Ask how integration works for the end user and what benefits it would actually provide.
• "100% quality control" - this impressive phrase is an operational impossibility. No one can afford to QC everything. Press for the real meaning and context of the vendor's quality control processes and procedures.

Kick the tires. Do more than listen to a sales presentation - a hands-on approach will be far more revealing and informative.

• Try the software. Most vendors will happily allow you to log into a demo database for a test drive. Trying it "live" will tell you far more than a canned demonstration.
• Meet operations and client service leaders. Ask to meet or speak to a high level operations resource and your client service contact. Getting to know those folks in advance will provide a great sense of what sort of service you can expect to receive. 
• Ask for process documentation. Ask for workflow diagrams and process documentation from prospective vendors. Any solid vendor will be able to provide these relatively quickly. If they can't, it suggests that documentation may be lacking.

Make side by side comparisons. Create a chart summarizing the key features, costs and benefits of all your potential vendors. This process will enable you to make informed decisions about who is best equipped to provide the services you need within your budget.

Critical thinking should be applied at every stage of the eDiscovery sales cycle. Informed consumers get the benefit of their own knowledge and avoid the unhappy surprises that can lurk in eDiscovery services.