[author: David Wagner]

For decades, law firms have organized themselves into practice groups or fully specialized firms to marshal resources and expertise, increase efficiency, and develop strong relationships with companies in specific industries or with specific legal needs. Most corporations use multiple law firms for this reason—different law firms have different areas of substantive expertise. While some view eDiscovery providers as a provider of commoditized services whose role is to reduce costs, there is additional value that eDiscovery specialization can provide.

Why specialization is critical

The exponential increase in the volume of data and technology options has led to an explosion of material that must be sifted through with both technical and substantive expertise. This is true for specific industries and various areas of law. If your eDiscovery provider has consultants committed to an industry or area of law, you have an advantage over adversaries who use providers without specialization. Having an experienced partner who understands your data from a technology and substantive perspective enables you to collect and process data more efficiently, accurately, and with greater insight and understanding in both the review and production phases.

Experience and expertise, however, are not enough. eDiscovery practice groups must also continuously re-envision solutions based on changing technologies and requirements. Let’s take a few examples from the financial services, healthcare, and pharmaceutical industries. Within these industries, there is significant litigation within intellectual property, antitrust, regulatory investigations, and privacy concerns. Here are some unique concerns that should be addressed in each area. As a bonus, we’ve included unique concerns related to antitrust, which impacts all three industries.

Financial Services

The financial services sector is heavily regulated, requiring knowledge of securities law, banking regulations, and compliance matters. This is seen primarily in U.S. Securities and Exchange Commission (SEC) subpoenas, Commodity Futures Trading Commission (CFTC) investigations, and securities litigation. An eDiscovery practice group needs to stay updated on emerging trends, enabling them to offer speed through comprehensive and consultative support.

Consider these questions when evaluating eDiscovery providers for financial services matters:

• Does the provider have forensics consultants who understand how to collect from applications commonly used in the financial services industry (e.g., Bloomberg, Reuters)?

• Do they know how to best process unique documents so they can be promoted for review in an easily viewable fashion (e.g., Short Message Format)?

• Is the review team familiar with the type of custodians (e.g., financial advisors, research analysts), documents commonly transmitted, and common issues found within financial services (e.g., Commercially Sensitive Information (CSI), Privacy Concerns)?

• Does the production team understand the specifications required by certain requestors (e.g., SEC, Financial Industry Regulatory Authority (FINRA), CFTC, Department of Justice (DOJ))?

Healthcare

The healthcare industry faces unique challenges related to healthcare regulations, including HIPAA, insurance fraud, patient privacy, and medical malpractice. In addition, healthcare systems are complex. The eDiscovery provider needs to understand a client’s data and develop bespoke solutions that can be standardized across workflows, including data reduction strategies.

Consider these questions when evaluating eDiscovery providers for healthcare matters:

• Do they give specialized attention to identification and redaction workflows?

• Do they have experience protecting Protected Health Information (PHI) and Personally Identifiable Information (PII)?

• Do they understand effective redaction workflows based on available technologies, including analytics and automated redactions? Is there a well-defined process and the ability to tailor out-of-the-box solutions?

Pharmaceuticals

The pharmaceutical industry relies heavily on patents and intellectual property rights. Drug approvals, marketing regulations, and compliance with Food and Drug Administration (FDA) guidelines necessitate specialized legal knowledge that practice groups can provide. 

Consider these questions when evaluating eDiscovery providers for pharmaceutical matters:

• Do they have specialized teams of reviewers and managers with the educational backgrounds and legal experience needed to comprehend complex scientific and patent subject matter?

• Do they understand FDA nuanced requirements with the ability to implement workflow strategies for things like eSubmitter packages as part of Investigational New Drug Applications (INDs), New Drug Applications (NDAs), Abbreviated New Drug Applications (ANDAs), and Biologics License Applications (BLAs)? 

• Regarding Multi-District Litigation (MDL), are they adept at staffing large teams, managing complex workflows, and evolving production needs of product liability over an extended duration with various parties?

• Do they understand the pharma industry from an antitrust perspective and how various players interact with the drug manufacturers, wholesalers, and pharmacy benefits managers, and the anti-competition issues frequently investigated by government agencies like the Federal Trade Commission (FTC) and DOJ?

Antitrust, White Collar, and Government Investigations

Handling data in government investigations and enforcement actions requires knowledge beyond standard eDiscovery protocols. Government regulators have detailed ESI protocols for the collection and processing of various data types, a factor that has become more complex as newly emerging data sources flood the markets. 

In antitrust matters, both the DOJ and FTC require an upfront discussion around the use of analytical tools to help identify potentially responsive data and have rules governing how algorithms must be trained and tested. These agencies also have specific requirements governing how privileged information is handled concerning privilege log creation. Finally, the agencies have detailed how certain data types must be produced. In white collar matters, regulators are increasingly requiring the implementation of compliance programs to ensure that certain types of illegal activity are identified quickly. These programs all have distinct data components.  

Global regulators have become more active in exploring the existence of potential competitive harm and possible illegal behavior. They have also been issuing new guidance in antitrust and white collar matters on such issues as pre-merger notification requirements and leniency programs. Given this uptick in activity and regulation, eDiscovery providers must stay up to speed on the latest developments.

Consider these questions when evaluating eDiscovery providers for government investigations:

• Is the provider able to quickly understand the IT infrastructure of the corporate client so that it can identify all relevant sources of data, promptly assist in the response to the Government’s IT questionnaire, organize the collection from the designated custodians, assess the impact of any global privacy laws, and set and maintain a schedule that will permit timely compliance?

• Does the provider have experience collecting the newly emerging data types and does it have solutions for processing and reviewing the same?

• Does the provider understand the operative ESI and TAR protocols that the agency may require, and importantly, can the provider assist counsel in the negotiation of any data requirements?  Regarding TAR, does the provider have a protocol document that captures up-to-date requirements of the government?

• Can the provider handle multiple languages in the data analysis and review process, given that government investigations may affect business operations in multiple countries?

• Does the provider understand specific agency requirements around the treatment of privileged data, including the construction of privilege logs that minimize agency challenges? 

• Does the provider have a team of attorney reviewers who understand the underlying legal issues in antitrust and white-collar matters, as well as joint defense and common interest privilege designations? 

Conclusion

There are other examples where you want to see substantive legal and industry expertise such as securities regulation, technology, or even the insurance industry. The key is that the specialization and expertise you provide as a law firm or expect from your outside counsel should also be expected from the eDiscovery provider you choose. This is especially true if your company or your client has a worldwide footprint - an eDiscovery provider should be a global provider and enforce a client’s vision across the globe to achieve the best outcomes.

It is not enough for a provider to handle your matters using “people with experience” but with a practice group (with one or more expert directors) demonstrating vision and commitment to an area of legal specialty or industry. They must deliver confidence that your matters are handled by professionals dedicated to providing committed expertise to your specialized needs in any industry or field.