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TECH SUPPORT For various reasons, law firms and legal departments should consider doing some of the work internally. BY GERRY BLACKWELL e-discovery — are you in or out? law firms and corporate legal depart- ments here are beginning to bump up against a decision point that more of their U.S. counterparts have already con- fronted: outsource or "insource." Vendors with special expertise and A technology sprang up to handle almost every phase of the Electronic Discovery Reference Model (EDRM), the blueprint for managing the e-discovery process. Firms and legal departments typically lacked the skills and infrastructure to efficiently perform many of the tasks themselves. So the norm was, and still is in Canada, to outsource to "vendor companies" everything from collection, to preservation, to processing, to review, and production of documents — espe- cially in large cases. Now some litigators and firms are questioning this strategy. In this first of a two-part series, we start to look at the pros, cons and ins and outs of bringing some of those functions back in-house — of insourcing. s electronic discovery in Canada evolves roughly in parallel with the U.S., if not at a slower pace, many "There are two reasons for law firms to be looking at this," says Dominic Jaar, president of Montreal-based Ledjit Consulting Inc. and CEO of the Canadian Centre for Court Technology. "I think some have seen vendor companies mak- ing a lot of money doing collecting, pro- cessing, hosting, and so on, and they're saying, 'I want a piece of the pie.' The other, perhaps more fundamental reason is that many litigators feel they have lost control over part of the process and they want to take control back." Jaar, a lawyer whose consulting prac- tice specializes in e-discovery and infor- mation management, believes firms can take back control in some areas, but cautions there are substantial obstacles, and in many cases it requires a significant commitment of resources. He also notes the lure of additional profits from insourcing may be illuso- ry. Some large U.S. firms that initially insourced e-discovery functions they had been outsourcing have now begun to "re-outsource," he says. They acquired technology and expertise, then found the technology, while it might work well in some cases, did not work well in all. There was a continual need to acquire new technology, which eroded antici- pated profits. At Borden Ladner Gervais LLP, the philosophy is a bit different, says Michael Condé, its Vancouver-based national director of litigation support. "We don't see [insourcing] as a revenue opportunity so much as a way of providing better, more efficient service to clients." Condé heads a 16-person litigation support team that works with lawyers in five of the firm's six offices. It's a mix of legal and IT personnel. Other large firms have similar structures in place, but not all work the way BLG's does. "We have no hourly goals, no revenue targets," notes Condé. "We simply provide the services. We do charge for some of those services, but [the department] is not driven as a revenue generator. For that reason, we'll do whatever we can in-house, but out- source everything else." Decisions about what to insource are made function-by-function, matter-by- www. C ANADIAN Law ye rmag.com M AY 2010 27 ENRICO VARRASSO