Outsourcing part of the disclosure / discovery process has suddenly attracted attention in the UK. Some think that this is due to the instincts in common between lawyers and the poor old lemmings, who are invoked as role models whenever more than two people or organisations move in the same direction simultaneously.
I am not sure that this correctly describes the motivation. It seems unlikely that the widely-publicised moves by Pinsent Masons and Simmons & Simmons are solely responsible for an increased interest in the idea that some work can be done just as well but much more cheaply by others. I suspect that many firms have been considering the possibility of sending out such work to India or South Africa for some time, and that they are influenced by wider matters than the example of two particular firms.
In part, outsourcing is an inevitable reaction to client pressure on costs. This was increasing anyway before the recession led to slashed budgets and tighter control by in-house legal departments. There has been a growing realisation on the part of the latter that much of the work does not require expensive lawyers in the capital. Much of it, indeed, does not require lawyers at all, and those firms who are now going down the outsourcing route are merely the first to realise that the old world has gone. It is also true to say that the outsourcing market has acquired respectability in the UK, largely thanks to Integreon, which has helped dispel the idea that outsourcing means direct liaison with monoglot foreigners in Mom and Pop shops whose work requires more time and cost spent on quality assurance than would be saved by outsourcing.
All this tends to obscure the fact that outsourcing does not necessarily involve incomprehensible foreigners beyond the seas anyway. The larger firms, in the US, the UK and Australia, have long had a twin-track approach to the collection, processing, culling and, in some cases, first-pass coding, of litigation documents.
Three components are required: one is an in-house application for processing data and making it available to lawyers, together with somebody to run it; the second is a provider or (preferably) a select list of providers which the firm can turn to for those jobs which are to be outsourced; the third (and most important) is someone skilled in project management who will make the choice between insourcing and outsourcing as new matters arrive and keep control of both. There are not many people with the skills to perform this latter role. The doyen of them is George Rudoy, Director of Global Practice Technology and Information Services at Shearman & Sterling LLP in New York.
George has written an article for Georgetown Law called To Insource or To Outsource which succinctly summarises the key factors to be taken into account in deciding whether to set up an Insource facility and, when you have it, how to decide which matters are dealt with in house and which go outside. This, as this article makes clear, is not just a matter of applying a simple formula to a case, and size is only one of the factors which determines which projects are done where.
You do not have to be the size of Shearman & Sterling to approach litigation in this way. The smaller you are, the less likely it is that you will want to take the technical functions of collection and processing in house, but the throughput, the range of cases, the number and the skills of in-house staff are all factors to be weighed. The only thing which is wrong is to consider none of the options and to plod on with a 20th-century paper-based mindset in 21st century electronic world. The Herbert Smith article which I wrote a post about yesterday may be worth another look in this context.
George Rudoy was the first US e-discovery expert I ever met, introduced by Jonathan Maas of DLA Piper within a few hours of my first setting foot on American soil on my first visit to LegalTech. Since then we have sat on panels together, most recently at Virtual LegalTech, where the subject has been George’s other area of significant expertise, international and cross-border evidence management. As his LinkedIn profile shows, George’s other main role is education.
All this adds up to an authoritative voice, and his article is worth reading for that reason, whichever side of the Atlantic you work on.