United States: Selecting an Electronic Discovery Vendor

Last Updated: March 12 2010

Article by Patrick Garbe, Chris Hansen, Allisa Vermillion and Kim Leffert

Originally published February 2010

Keywords: Electronic discovery, electronically stored information, ESI, data security, ediscovery vendor


A large, international company has been served with a complaint alleging antitrust violations. Vast amounts of electronically stored information (ESI) will need to be preserved, collected, reviewed and possibly produced in defense of this litigation. Over the years the company's legal department has retained many different vendors to assist with document collection and review, usually at the recommendation of outside counsel. A recent audit of the legal department questioned whether this is a cost-effective approach. Based on the nature of the claims, this litigation may continue for years.

What are the Considerations of Vendor Selection?

With so many electronic discovery vendors in the industry how does a company begin to select the most effective and efficient provider? Several general considerations should be addressed at the outset of the litigation: Data Security and Privacy, Costs, Product Quality and Performance.

Clearly defining the specific parameters of the case along with an analysis of the company's litigation risk profile will assist in selecting the most appropriate electronic discovery vendors. These considerations are important whether the company intends to enter into preferred provider agreements — to reduce costs and speed up the selection process when future litigation hits — or to hire a vendor that can get started immediately for this case only.

Data Security and Privacy

  • A growing body of rules and regulations in the United States and internationally address data protection and privacy; these can, and frequently do, impact a company's operations. Consider whether a vendor is familiar with these rules and regulations and can provide viable options for compliance.
  • Companies are legitimately concerned about how their data are managed, whether by outside counsel or third-party providers. Consider whether the vendor's data management policies and procedures meet the company's requirements.
  • Information security is critical to business operations. Determine if the vendor has comprehensive guidelines in its policies and procedures addressing this risk.
  • It is crucial to confirm the financial viability of any proposed vendor. There is significant volatility in the electronic discovery industry and data and time can be lost if a vendor unexpectedly ceases operations.


  • Accurately predicting the final cost of a project is often difficult. Initial cost estimates are usually based on limited information. In addition, new issues will likely arise during the project that can have a significant impact on costs. Thus, it is very important to consider possible changes to the anticipated scope of work and to negotiate pricing for those tasks that is understandable and acceptable.
  • Complex cases can require unique data handling, which may lead to additional resources and higher costs.
  • Unexpectedly large data volumes and short production timelines also can drive up project costs.
  • Various pricing options are available from vendors. Custom pricing and flat fees may provide more certainty, but they may not be the most cost-effective option for all cases. It is important to understand the cost factors, whether for the immediate case or for a longer-term engagement, before deciding on a vendor.

Product Quality

  • The experience and skill of the project managers and technologists at each vendor are often key discriminators among providers. Check the vendor's references, by consulting with colleagues and other counsel who have used them.
  • Consider the capabilities of the vendor in the following areas:
    • Electronic Discovery Consulting Services
    • Data Collection
    • Data Processing
    • Data Hosting
    • Document Review Staffing
    • Production Formats
    • Hosting Inactive Case Data
    • Printing
    • Project Management
    • Training
    • Technical Support
    • Security
    • Use of Subcontractors
    • Conflicts checking
  • A company may not need all of these services in each matter. Further, nearly every vendor has a "sweet spot" where its services excel; consider retaining more than one vendor, even for a single litigation, if there is a particular need.


  • An E-discovery vendor must be able to handle large data volumes, meet tight deadlines, and produce information consistent with specific requirements.  The failure to produce documents in a timely fashion, or in the appropriate format, can lead to disputes with opposing counsel, loss of credibility with the court, and, at worst, sanctions.   Many factors can affect production, including problems during  the data collection, processing and review.  The best vendors can anticipate potential problems and resolve them in a timely fashion, allowing counsel to meet their discovery obligations
  • It is important to inform the vendor of the services needed and time frames in the litigation and verify that the vendor can deliver the services that enable you to meet your discovery obligations.
  • It is also important to confirm that the vendor understands and can meet your specific production protocols and deadlines.

How to Get Started

For companies with routine or predictable litigations and investigations, it may make sense to enter into preferred provider agreements with select vendors. This can be done by issuing requests for proposal or requests for information to a number of vendors, evaluating the responses, and choosing several that meet the company's various ESI collection, review and processing needs.

Companies that face few or unique litigations or investigations may be more comfortable selecting a specific vendor for a particular matter when it arises. If time is of the essence, it may be most efficient to limit the selection to two or three vendors. Consult with your colleagues and outside counsel on their experience with vendors. Identify for each vendor the specific parameters and scope of your case and request a service agreement and Statement of Work (SOW) that suits your discovery plans and needs.

Despite some consistency throughout the industry in terms of the core services, there are unique approaches among vendors to pricing, functionality and workflow. Thus, you should determine key discriminators among the possible vendors. Further, consider how case priorities align with a vendor's policies in the areas of data security, project costs, review complexity and schedule. In addition, it is a good practice to have a comprehensive agreement that addresses various risks, including service level agreements, and that contains specific provisions regarding limitation of liability, indemnification, termination and restrictions on the vendor holding the client's data hostage.

While many vendors will try to convince you otherwise, no one vendor is the right choice for every litigation. Learning the strengths and weaknesses of each vendor, and comparing their services, will provide much-needed insight and will assist in the selection process.

Learn more about Mayer Brown's Electronic Discovery & Records Management practice or contact Anthony J. Diana at adiana@mayerbrown.com, Michael E. Lackey at mlackey@mayerbrown.com or Thomas A. Lidbury at tlidbury@mayerbrown.com.

Visit us at www.mayerbrown.com.

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2010. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions