Back in June, I wrote about the agreement by Eversheds Sutherland to take OpenText’s Axcelerate to enable the firm to take control of its eDisclosure management without having to be responsible for the software and infrastructure. An opportunity arose shortly afterwards to hear about the decision-making process behind this and about the benefits which have resulted from it.

It is surprisingly rare for law firms to promote their use of technology in support of their eDisclosure / eDiscovery services. The main reason why law firms make an investment in technology and in the training which goes with it is to offer a better service to the clients at a lower cost, whilst ensuring that they make a profit at the same time. These are worthy ambitions, signs that the firm is bringing the same commercial nous to its own business as its clients expect for theirs. The handling of documents and data is one of the most expensive components of disputes and investigations. Why, then, are law firms traditionally shy in talking about it?

Part of the problem, perhaps, is that the mechanics of service delivery are not considered worthy of attention from marketing departments. I also hear from time to time of law firms and service providers who have client offerings of one kind or another – a technology package or an attractive pricing scheme – but do not promote it until the client connection is already made, so the only people who hear about this bait are the ones who have been hooked already. No, I don’t understand it either.

Eversheds Sutherland has taken the opposite approach in its recent agreement with OpenText Discovery for its use of Axcelerate. Having heard about the thought processes which went into the decision, and about the service which results, I am not surprised that Eversheds Sutherland want to talk about it.

OpenText organised a panel discussion with Eversheds Sutherland in the crypt of St Paul’s recently and invited Paul Worth, partner and Co-Head of Global Litigation, disputes partner Nick Rundle, and Enzo Lisciotto, Head of Litigation Technology, to talk through how Eversheds Sutherland arrived at the decision to take Axcelerate in house. OpenText’s Simon Price led the discussion.

A big firm – but the principles scale down

Eversheds Sutherland is a big firm with about 500 lawyers engaged in litigation and other contentious work across multiple sectors including government, financial services, energy and retail.

It is worth making this point at the top. You may say that a firm of this size is no model for yours and that its practice (and practices) have no lessons for you. You would be wrong. The story told by the panel was not about their cases or the specific software functions they use, but about the thinking which went into the decision to take a particular approach and a particular product.

This includes decisions as to the use to be made of third-party providers of both software and services, and the balance to be struck between doing work in-house and sending it out. Eversheds Sutherland went down one route (strong in-house capability, OpenText’s Axcelerate hosted by OpenText but managed by the firm, development of strong in-house skills) and that will be a solution which is right for many firms.

The real point, however, is that there is a wide range of options out there, and that firms of whatever size should be conducting an analysis similar to that described by Eversheds Sutherland to decide what is right for them. The fact that an option was considered by one firm and discarded by them does not make it wrong for other firms.

From horses for courses to a closed list of vendors

Like many firms, Eversheds Sutherland had been working from project to project using multiple vendors. While this allowed a horses for courses approach, the procurement exercise itself was becoming “tiresome” to say nothing of expensive. More than that, it brought risks – and not just the risk of getting the wrong technology or paying too much for it; not every lawyer is an expert in the minutiae of contracts for IT services or in the data protection implications which arise as soon as you start handling large volumes of somebody else’s data, and anyway their time was better spent getting on with the work.

The decision was made to reduce the number of vendors with whom the firm dealt. The firm became increasingly strict – “directional” was the word used – in the relationships between individual partners and external providers of services. Terms and conditions were pre-approved and prices were negotiated which helped reduce the burden (and therefore the time and expense) of starting up new projects. The lawyers became better at cutting costs as they got better training and as relationships developed between the firm and its informal panel of providers.

Taking work in house

Barristers perhaps do not like to think of themselves as external service providers, but the principles are much the same, and the firm began to place constraints on the range of counsel who could be instructed. This did not exclude barristers with particular specialist skills but set a general habit of going mainly to the same small group of chambers.

The parallel with barristers goes further than that. With barristers as with eDiscovery providers, sending work out might be the right solution at any particular point but does raise the question whether the firm should not be doing some of that work itself. The lawyers were encouraged to think more closely about that.

Defining selection criteria

Thus far, therefore, two main principles had emerged – minimise the amount of time and risk involved in choosing providers, and retain work in house where it was practicable and profitable to do so.

Other key criteria emerged:

• The firm did not want to host data itself
• It wanted to be kept up-to-date and always on the latest version of software
• Personal relations mattered – the chosen provider had to be “someone we could work with”
• Whatever the licensing position, the firm wanted “ownership” of the solution – it had to be branded with the Eversheds Sutherland name, something which, surprisingly, disqualified one or two potential candidates who were not willing or able to make that concession.
• Security of the data was vital, both in transit and at rest

Note that none of these criteria involved functionality or specific tools – that came later. Eversheds Sutherland approached this as a business decision defined by much broader criteria than functionality.

Using these selection criteria, Eversheds Sutherland set about their selection process. Nick Rundle gave credit to the participants for the “constructive and helpful” way in which they engaged with the firm. It is, of course, easer to deal with a would-be buyer who knows what it wants, as Eversheds Sutherland clearly did; I wonder if the criterion “someone we could work with” helped ensure that those who came to the table were the constructive kind.

The competition

This decision-making process marched with the development of managed service offerings by providers which were offered as much to clients as to law firms. Managed services in this context connotes the idea that there is a multi-year contract for the provision of varying amounts of licences, functionality and storage capacity, but also of services to go with it. The buyer can shed responsibility not only for the technology management but, at its own election, commission varying amounts of consultancy. This ranges from delegation of the whole technology task (as opposed to the strategic and tactical direction) at one extreme, through to the ability to call on providers’ services as and when required e.g. to cope with peaks and troughs.

Eversheds Sutherland resolved to move over time to doing as much of the work in-house as possible – a parallel with its conclusion about reclaiming work from barristers.

The OpenText agreement, staffing and raising awareness

To abbreviate the story somewhat, Eversheds Sutherland signed an agreement with OpenText for the use of its Axcelerate eDiscovery product. OpenText is responsible for maintaining the software and keeping it updated, and for ensuring that the right amount (which means a flexible amount) of storage was available on Amazon Web Services as required.

This allowed a phased move towards taking back the actual work with decreasing reliance on OpenText. That process was accelerated by a decision to invest in the firm’s existing eDisclosure support unit, not least by hiring Enzo Lisciotto who had held a similar post at another firm. Talking of the support from Enzo and the technologists and analysts, Nick Rundle said “You don’t realise how much you need it until you have it”.

The next step was to raise awareness of the capability with a roadshow to the firm’s offices and to its disputes and other practice groups.

This is how we work here

Released from the need to put every project out to tender, the lawyers could now use the system for every matter involving data. The costs of a procurement exercise may, just, be worth it for a very big project, but is not justified for a small matter. Now the lawyers can put any matter, however small, into the system . A side benefit of this is that skills acquired for bigger matters can be used for smaller ones, an investment which is often overlooked when firms are doing an analysis like this.

Eversheds Sutherland set up a group of “super users” who can help and encourage others. Presentations were made to clients, and clients can be given access to the data.

The system quickly becomes a differentiating factor – not just the availability of the technology but the firm’s own workflows and processes. It was once impressive merely to be able to say to clients “We are going to put it on our review platform – this is the way we do things here”; that is turning into a necessity for any firm bidding for work from big and knowledgeable clients.

This ability appears at its most important when there simply is not time to do a proper procurement exercise – if a client is subjected to a dawn raid by a regulator, for example, then every hour matters. It is no good saying “It will take us a week to get started”.

It becomes possible to use the software for a wider range of work. Employment work does not generally involve as many documents as other types of litigation, but once you have the system, you don’t need not to justify putting the data in it. Subject Access Requests, something which will be an increasing problem when the GDPR comes into effect in May 2018, are another example of this. The firm’s Competition team is using Axcelerate for investigations, and there is the potential to extend this beyond contentious work and into due diligence exercises and other things which involve handling a lot of data.

Conclusion

Why would any firm with contentious work not undertake an exercise like this? The conclusion may be different – it is perfectly reasonable to undertake the analysis and decide that you are managing disclosure as well as you possibly could – but given the expense and the risk involved in disclosure (to say nothing of the benefits to both firm and clients of getting it right), you would expect it to warrant a certain amount of analysis.

I recently written about The Lawyer Litigation 50 report and quoting from it a partner in another big firm who said “[the clients are] concerned with the output rather than the model”. That is probably right when the context is the technology detail of software choice, workflows and processes. Clients are, however, increasingly interested in how firms structure themselves to bring efficiency to this expensive element of disputes; the same report suggested that many clients are not overly impressed by law firms generally in this regard.

That in turn implies that technology use is a differentiating factor for law firms increasingly facing competition not just from direct rivals but from eDisclosure providers, from the clients themselves and from smaller firms. The Eversheds Sutherland approach – to system selection, to staffing, to getting the job done and, not least, to differentiating themselves from rivals – is pretty impressive.

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