e-Discovery outsourcing 101: who makes which decisions?

Because e-discovery is complex, and the penalties for screwing it up are significant, the following choice should be considered periodically by attorneys, clients and IT people involved in e-discovery: “Do we do this piece of the project with the people we have already, or do we add people to our payroll who do this, or do we bring in an outside partner to do this?” This is when the IT people reading this post will start muttering the cliché truism “Build or Buy?” which means choosing between “do it ourselves” and finding a pre-packaged solution.

In a generalized “leadership” or “management” frame of mind the basic choice is: “Do, Delegate, or Dump.” I am fond of characterizing this choice as the assignment of the locus of control for decision-making, where an important consideration is who will do the best job of making the decisions once given that responsibility.

• “Do” = Must I make a particular set of decisions myself – are those decisions an essential part of my role in the organization, and am I the one with the right information and motivation to make these decisions?
• “Delegate” = Can someone else do just as well, or perhaps a better job, with making this set of decisions, especially after making these decisions became an essential part of their role?
• “Dump”: should we even be in the business of making these decisions at all, or can we just drop that issue off of our plates somehow?

For example, one can dump having a company picnic to save money. One can’t dump bookkeeping, however, even in a very small company. But even in a very small company a leader can usually delegate or outsource primary responsibility for bookkeeping and expect to get good results while focusing on core competencies of the business such as production, customer relationships, and motivating team members.

Ultimately the choice boils down to this: Do I want to possess and maintain expertise in making certain decisions, at a certain level of granularity, as a core competency? If yes, then I must make it a core competency, which means investing the time, attention, and education it takes to do it right. If no, then I should bring in someone else who has that core competency and who is invested in doing it right.

In e-discovery, answering the question of what can be outsourced — or where to place the locus of control for decision-making — gets even more interesting since courts hold attorneys personally responsible not only for delivering high-quality document production results but for understanding and directing the process by which results are achieved. So the question becomes: Will attorneys generate better document production results when they personally control more of the process (for example, by personally, hands on the keyboard, deriving and executing search methodology)? Or, will they generate better results by collaborating more with outsourced experts, directing and supervising but delegating more of the hands-on decisions?

More than a few attorneys reading this might find that the choice is not as cut and dried as they think. In my next post I’ll explore this choice by applying the core competency / locus of control standard to competing document review automation solutions from Inference Data and H5.