BYOD: Roll Out or Roll Back?

David Cram
Director

Managing mobility on an enterprise level can be a daunting and complex task. Each major mobile carrier is continually rolling out new plans and features, discontinuing others and also maintaining their own list of “custom offerings” that many organizations are not aware exist. The vast number of plan options and combinations is staggering — over 14 million different combinations for an organization with 1,000 managed devices.  As a result, many organizations are paying 20 to 40 percent more than what others are paying for the exact same service requirements.

Over the past few years, the “Bring Your Own Device” (BYOD) approach to enterprise mobility management has dominated conversations. On the surface, BYOD sounds like a simple solution to the complicated task of managing mobility for hundreds or thousands of employees. But this seemingly simple decision comes with an array of hidden challenges. Here are three key considerations organizations should take into account before updating or implementing a new mobility program:

  1. Examine cost drivers. The first step to managing any expense is to understand the cost drivers. Organizations should start by looking at the number of current corporate mobile users, and then dig deeper into how many users are eligible for BYOD stipends. Next, they should review the mobile adoption rate and consider how the adoption rate would change if the program was altered. Having this information is critical to ensure organizations can make data-driven decisions about a go-forward strategy.

    From there, organizations should analyze how expenses are currently paid. For instance, are any expenses paid via expense reimbursement or charged back to employees? The best way to evaluate both BYOD and corporate mobility programs is to establish a total monthly cost-per-device. By translating both the corporate managed costs and reimbursement costs into a monthly cost-per-device, organizations are able to allow that data to guide their decision on what BYOD stipend amount will breakeven with the corporate mobile device plan. A significant hurdle many organizations face when analyzing their established monthly cost-per-device summary is an understanding of what corporate costs could be if their mobility program was fully optimized. As stated earlier, most organizations’ corporate mobile costs are 20-40 percent higher than they should be, which should be factored into the analysis. Setting the stipend amount too high can lock in wasteful spending. Yet setting the stipend too low may lead to the risk of potential liabilities.
     
  2. Understand the liabilities. Many organizations handle a significant amount of sensitive data. Therefore, it is important to consider IT security rules when allowing employees to work on their own personal devices. When employees leave the company, for example, a BYOD plan can leave an organization vulnerable to the misuse of company data. This is why it is critical that all BYOD programs have processes in place that allow organizations to remotely access and clear devices in the event that an employee’s device is lost or stolen, or if the employee abruptly departs from the organization.

    Separately, it is important to fully understand the liability risk of setting the stipend amount too low. In Cochran v. Schwan’s Home Services Inc.1, California courts ruled that employers must reimburse BYOD employees for a “reasonable” percentage of their phone bill.  Although “reasonable” is not defined, and this ruling is state specific and not yet nationwide, employers should understand that there are risks to setting stipend amounts too low.
     
  3. Do not overlook indirect costs. Oftentimes the cost and time drain of administrative work is disregarded when evaluating mobile program financials. To get a true sense for how much the company’s mobile strategy costs, leaders must look at the time employees spend tracking and requesting reimbursement for their mobile usage – time they could have put towards other work. Leadership should also look beyond the end-user and consider the time finance and accounting spends reviewing and reconciling reimbursements, as well as the resources IT puts into troubleshooting or updating devices. BYOD is not the only solution for relieving mobility management pain points; outsourcing this function to a managed service provider is an increasingly growing trend and strong option for organizations looking to focus more of their resources on operational activities that directly add value to their clients.

A Shift Away from BYOD

While having an understanding of the organization’s internal needs is important, it is also vital that business leaders carefully evaluate the ever-evolving options that exist in the mobile marketplace. In our work with clients, we are seeing the traditional BYOD framework continue to change, with many organizations delaying or moving away from the BYOD model due to one or more of the following reasons.

For starters, many organizations have lost pricing leverage when moving from corporate-managed mobility to individually-managed. Early BYOD adopters have realized that the biggest winner in a BYOD deployment is usually the carrier. Effectively, the carrier is shifting volume from a highly negotiated and managed contract to hundreds of individual contracts with no negotiation leverage. Many organizations are also facing a lack of device management options, which results in higher costs. For instance, if an employee incurs significant overage expenses, the responsibility is on the user to correct the overage going forward. The organization cannot make plan changes to an individual-liable device, further limiting the cost efficiency of most BYOD programs.

While carriers are beginning to create more simplicity in plan offerings, they are increasingly bundling more charges into base plan offerings. The risk with these bundles is the lack of transparency into true cost, and the potential to overprovision and buying more than what is needed — which is often a surreptitious objective of the carrier. At the same time, better mobility managed services are allowing organizations to capitalize on, or move away from, the BYOD model. Managed services in this area have grown in sophistication and can manage the entire mobile purchase cycle – from device ordering through to device termination. 

Overall, there are a myriad of ways that an organization can roll out or roll back BYOD. The decision is unique to each organization, and must be made with consideration to culture, policies and goals. Although there is no one-size-fits-all approach, organizations must ask the right questions, take the time to gather all necessary information and carefully identify their goals before charting a course down either path. In the end, organizations will be glad they did, and so will their end users.

For more guidance on managing enterprise mobility, schedule a briefing with me at dcram@hbrconsulting.com.

Information Governance Survey: 3 Things Organizations Can Do to Enhance Their IG Programs in 2017

Laurie Fischer
Managing Director

High-profile security breaches, the ever-growing volume of corporate data and increasingly complex regulatory and technical environments emphasize the need for enhanced enterprise-wide information governance (IG). The mission of many corporate law departments is to help protect their organizations from unnecessary risk and exposure. Therefore, many corporate law departments are facing increased pressure to help reduce the risk that is inherent in unmanaged and uncontrolled information.

To better understand the priorities and challenges associated with IG that corporate law departments face, we conducted a survey during our annual HBR Law Department Survey roundtable series in New York, Chicago, San Francisco, and Houston. The survey of 33 law department leaders found that while they continue to focus their attention on department-specific issues, about half are also actively engaged in their organizations’ enterprise-wide IG efforts.

Not surprisingly, the two primary drivers for pursuing enhanced IG are increased compliance with regulators and reduced risk of a privacy breach or cyberattack. Though both are viewed as “must haves”, privacy breach risk reduction slightly edged out regulatory compliance in importance. In fact, the fear of a privacy breach, and related loss of reputation and market share, is a key driver behind many defensible disposition initiatives. 

While forward-thinking law department leaders see privacy and security as a priority, many still view it as a purely IT issue. Only 40 percent of those surveyed stated that their organizations’ policies were used by most employees, and 23 percent felt their policies were difficult to understand and follow. To close this gap, organizations should integrate simplified policies and processes and implement supporting technologies that make information governance “invisible” to the end-user.

In our survey, we found three areas in particular where organizations can improve upon their IG programs. 

  1. Records Retention. A records retention schedule defines how long information must be kept and guidelines for disposal based on regulatory, legal, and operational requirements. The retention schedule is foundational to successful information governance since it dictates an organization’s disposition and preservation actions. However, we’ve found many organizations’ retention schedules are overly complex, potentially resulting in a lack of compliance. In fact, less than half of the law department leaders we surveyed felt their retention schedules were user-friendly. Furthermore, fewer than half feel their retention schedule is actually being applied in either their hardcopy or electronic recordkeeping environments. To address this low rate of retention schedule compliance, many organizations are in the process of updating outdated retention schedules that were developed at a time when the majority of records were still in hardcopy format. Today, with more than 90 percent of corporate information in digital format, retention schedules typically require consolidation and simplification to be “actionable” in a predominantly electronic environment.
     
  2. Email Management. Although email systems have been in place for over 20 years, effective email management remains elusive for many organizations. Rather than managing email by the value of its content, most organizations continue to manage it by arbitrary time periods, applying an auto-delete policy to email aged over a specific time period such as 30 or 60 days. Other organizations impose a size limitation that prohibits employees from sending or receiving emails once the maximum volume is reached. The problem with both of these options is that they incentivize employees to move email outside of their mailboxes in order to keep the information for extended periods. In fact, over half of the companies surveyed still allow the use of personal archives (PSTs), which provides employees a simple way of avoiding the time or size based limits on their mailboxes. Since such habits can thwart eDiscovery efforts, we’re seeing organizations trend towards discontinuing the option to personally archive email messages.
     
  3. Securing the Cloud. Spending on public cloud infrastructure as a service and software was estimated to reach $38B in 2016 and continue to grow to $173B by 2026 . Given that cloud-based services continue to grow in popularity, it is not surprising that close to 75 percent of law department leaders said they will have transitioned to Office 365 within the next 12 to 24 months. The move to the cloud is not only attractive from a cost perspective, but also its ability to better support employees’ mobility and collaboration needs. What is sobering, however, is that over 45 percent of respondents stated that they do not have a process in place for ensuring that their cloud-based data is being managed in accordance with their governance policies. Companies need to start accounting for the cloud when designing and implementing their programs, or their programs will fall short in mitigating risks. 

Moving forward, law department leaders should support a holistic, end-to-end approach to enterprise-wide IG programs, including policy development, technology strategies and business process improvements. This will allow their organizations to better address the challenges outlined above and improve the overall success of their IG programs. 

To learn more, you can download the survey report or schedule an information governance briefing with me at lfischer@hbrconsulting.com.

To Win Corporate Business, Law Firms Must Increase Transparency and Efficiencies

Nick Quil
President

As corporate clients continue the journey toward operational excellence, law firms are being challenged to respond to corporate client requests to improve transparency and efficiencies. With corporate legal spending on outside counsel continuing to decrease – it was down 2 percent in 2016 according to our annual law department survey – we are seeing inside spending as a percentage of revenue exceed outside spending for the first time. This is resulting in law firms seeking ways to differentiate themselves in an increasingly competitive market.

In the market, we are seeing a movement towards leading law firms paying close attention to evolving law department trends. By evaluating key law department strategies, HBR is helping law firms to better align their services with both current and future client needs. Our law department survey found that the top criteria for outside counsel selection was the level of client service and engagement (79 percent). Law firms that are truly engaged with corporate clients have a solid understanding of their overall business, beyond individual matters, and holistically looking at the entire lifecycle of the client relationship to determine areas where they can improve, such as:

  1. Minimizing billing surprises. As corporations look to control costs, law departments are increasingly seeking transparency and visibility from law firms in an effort to minimize billing surprises. To meet these requests, leading law firms are focused on implementing clearer billing processes and leveraging technology to ensure transparency from the onset of new matters. 
     
  2. Making IT a strategic partner. According to our survey, 40 percent of law departments plan to increase their use of technology to automate routine tasks, enhance work processes and support data analytics in the near future. As law departments become more tech-savvy, there is a desire to work with law firms that are elevating their IT functions from ‘back office’ support to a more strategic partner. For some firms, this means moving to third-party IT infrastructure and support to free up IT leaders’ time so they can focus on strategic initiatives that support the firm’s attorneys in achieving overarching business goals. 
     
  3. Managing third-party risk with advanced procurement capabilities. Leading law firms are looking to improve operational efficiencies and reduce costs through enhanced procurement functions. But with increased client awareness around potential third-party risks, law firms are strategically investing in support areas focused on establishing vendor governance policies and processes to comply with client security requests.  

From the outside counsel selection process all the way through the billing process, law firms looking to differentiate themselves are leveraging the client perspective to help drive change within their firms. And as corporate client needs continue to evolve, law firms that are continuously reevaluating how they design processes and deliver services to align with corporate clients will be the firms that thrive in an increasingly competitive market.   

To learn more, view our recent press release on trends for law firms looking to better serve clients or contact us for a legal trends briefing.

How to Leverage Consultants to Generate Internal Support

Kris Martin
Senior Director

As the legal market continues to evolve, consultants have emerged as a key resource for addressing the challenges faced by law firms. Consultant engagements have also evolved, and law firm executives are not the only ones seeking help from legal consultants. In fact, 30-40 percent of consultant engagements are now initiated by stakeholders outside of the C-suite. This is dramatically different from 10 years ago, when consultants were mainly brought on by the executive team. 

Today, law firms are leveraging consultants to help generate the support and necessary buy-in to move forward with new technology investments and strategic changes. To address firms’ needs and challenges in the law library space, Matt Sunderman, managing director and practice group leader for HBR’s Global Strategic Sourcing and Business Optimization Practice, participated in a panel at the AALL Conference titled “Partnering with Consultants: New Ways to Accomplish More.” Along with other law library stakeholders and consultants, Matt covered burning questions, such as how to successfully select and work with consultants, when you should and should not consider consultants, and what to do when you are not at the decision making table to select the consulting firm. Here are four considerations when bringing on consultants:

  1. Organizations should consider hiring a consultant when dealing with internal bandwidth restraints, when working on a short timeframe, or when undergoing major changes, such as a merger or new leadership. 
  2. When selecting consultants, it is critical that firms do their due diligence and vet a number of firms before making a decision. Make sure the consultants you bring on have relevant experience and principles that align with your firm’s overall goals. 
  3. Once you have vetted and selected a consultant, establish a project plan and decide on KPIs. Maintaining trust and open communication are essential factors for any successful partnership, but especially when bringing on a third party to help make firm-wide decisions. 
  4. For law firms concerned about the costs associated with hiring a consultant, try to be creative. For example, look to see if you can shift some expenses (e.g., reduce loose-leaf costs) in order to invest in consultants and other special projects. 
  5. Consultants can also step in when firms experience a leadership change in the C-suite or within practice areas. Outside perspective can provide firms with insight on best practices and help validate roadmaps. Similarly, when firms are going through a major transformation or downsizing, it also makes sense to bring in a consultant to streamline the process. 

With a well-defined plan and solid communication strategy, law firms can foster successful partnerships with their consultants. When seeking external subject matter expertise, it is essential to be transparent and approach partnerships with an open mind. Establishing a collaborative workstyle will also ensure that project goals are achieved. 

For more information on how you can leverage consultants for project-based work in your firm’s library, check out our recent Evolving Libraries for Law Firms Survey or contact us.

 

Library Analytics: Laying the Groundwork for Efficiency

Kris Martin
Senior Director

Earlier this month, Law360 featured an article by HBR Consulting’s Fahad Zaidi that provides insights into mistakes to avoid when building a law library. More specifically, Fahad explores common missteps that law firms should be aware of when considering data analytics tools and new software for their libraries. 

As Fahad points out in the article, law firms devote a significant portion of their budgets to their libraries – yet inefficiencies in this area continue to exist. “Inefficiencies within libraries not only hurt a firm from an overall cost perspective, but also weaken the value of successful libraries. This poses a variety of risks, including going over budget, paying for duplicate content and missing contract renewals,” Fahad explains. Many law firm library leaders are looking to data analytics to circumvent potential inefficiencies.   

To mitigate risk when exploring data analytics and tools, library leaders should: 

  • Link financial data, contracts and platforms 
  • Aggregate platform usage data by individual user
  • Develop consistent visual reporting techniques and styles
  • Organize data to allow for custom metric creation
  • Limit need for manual creation of recurring and ad-hoc reporting 

Law firms continue to make strides in adapting to an increasingly digital world, and the law library must follow suit. To take advantage of the big data and continue to provide more value for the broader organization, library leaders must embrace change by pursuing new tools that promote better efficiency. To learn more about how law libraries can navigate the complex landscape by leveraging data analytics, check out Fahad’s full Law360 article here. 

Legal Lab: With Change Comes Opportunity

Nick Quil
President

There is no denying the fundamental shift that is underway in the legal industry. Both law firms and corporate law departments are examining new metrics to track outcomes and report on success, leadership roles and responsibilities are expanding to keep pace with fluctuating market demand and law firm service delivery models are evolving to keep pace with corporate client demands. Cutting-edge law firms and law departments understand that in order to keep pace with change, they must actively draw and learn from clients, competitors and other thriving industries. 

To explore the significant and pressing issues facing the legal vertical today, HBR Consulting created Legal Lab, an intimate forum for c-level executives and legal industry leaders to collaborate and share ideas on how to spur innovation and drive real change in the industry. 

As an outcome of this year’s event, we produced the Legal Lab Executive Summary that captures key themes and discussion takeaways, including: new ways to define and achieve value, alternative methods for providing legal services and using changing conditions to motivate innovative solutions.

Key Takeaways

Law Firms

Rooted in traditional processes, law firms are known for being risk-averse. But navigating an evolving legal market calls for law firm leaders that are willing to change the mindsets and culture of their firms to effectively meet client needs – a shift that requires embracing change and taking more calculated levels of risk. Law firms can foster innovation by creating climates that approach mistakes, or failed projects, as internal learning and growth opportunities. 

Law Departments

To keep pace with internal and external pressures, corporate law departments are rapidly changing. The General Counsel role has evolved beyond risk and compliance advice – GCs are now acting as strategic advisors to the board and are helping to shape the overall business strategy. Law department leaders are shaping the future by boosting efficiency, demanding transparency and predictability and improving communication with outside counsel. With data-driven analytics and new metrics driving decision-making, law departments are pursuing new, innovative technologies to align internal and external legal resources. 

Opportunities Ahead

While perceived as being on two different pages, there are many shared learnings and opportunities for law firm and law department leaders.

  • High performance is a byproduct of culture. Organizations that foster cultures of innovation – encourage employees to think big, develop creative ideas and learn from mistakes – achieve higher performance.
     
  • There is no “fairy dust” for Innovation. As Legal Lab’s opening speaker, Matthew Syed discussed, innovation is not a singular, “magical” event. Instead, significant and innovative efforts focused on solving specific problems can be advanced through a series of marginal, incremental gains that have a transformative effect over longer periods of time.
     
  • Transparency is high in demand. Legal Lab attendees explored the disconnect between what law firms think they are demonstrating to clients and what clients actually believe they are getting from outside counsel. Employing closed-loop feedback – the process of identifying key touchpoints throughout the lifecycle of a matter and seeking feedback at each critical point of the process – will help support the transparency and predictability that law departments expect from outside counsel.
     
  • Metrics should align to value. While both law firms and law departments are currently focused on client satisfaction evaluations, the focus of their metrics differ. Law firm metrics focus on internal profit, while law department metrics focus on value of outcomes. An opportunity exists to better align metrics to streamline efficiencies and maximize value provided across the legal industry. 

To learn more about Legal Lab and best practices for leading your own organization through the rapidly changing legal landscape, please contact us

Are You Paying Undetected Telecom Overcharges?

David Cram
Director

Much has been reported on the frequency of carrier billing errors, causing telecommunications vendors to inherit a reputation for having ineffective billings departments. And for good reason – it’s been reported that one in five telecom invoices have errors and that 85% of these errors happen to be in the carriers’ favor.

Despite these statistics, most law firms do not conduct a deep and thorough review of their telecom invoices on a monthly basis. According to a recent survey from Valicom, a Telecom Expense Management (TEM) firm, only 22% of organizations claim to do “line item” verification of invoices.

A separate Valicom study found 87% of these billing errors are small, making the errors difficult to identify in a traditional “red flag” review process. The “red flag” approach is common among organizations that do not have the expertise or dedicated resources to meticulously comb through invoices received each month. These little billing errors accumulate over time and can result in significant credits to customers who overpay. In fact, we’ve seen many of our clients collect upwards of $100K in credits by conducting ongoing verification and validation of all invoice charges.

Telecommunications carriers are aware of this problem and are taking increased steps to correct this error—in their favor. What is their solution? To limit the “look back” period in which customers can pursue credits for overpayment. Previously, it was possible to trace the discrepant charges back multiple years. Today, many carriers are trying to limit their exposure to six months. Any errors identified outside of that six-month window are ineligible to be credited back and instead are forfeited to the carrier.

To avoid overpayment, here are three common invoice errors to look for:


1 - Taxes and tariffs. Regulated telecommunications services are governed by a set of tariffs managed by the federal government, which sets the maximum allowable rates for each service1. In addition to these charges, there is a Federal Subscriber Line Charge (FSLC) that the FCC sets at a maximum of $6.50 for a single line, and any amount above this is actually against federal law. Many clients do not know how many lines they have, not to mention what the FSLC charges for each. Errors of this nature often extend past the shrinking Period of Limitations that carriers are closely monitoring.

2 - Failure to implement new contract pricing. Procurement and IT teams spend a lot of time negotiating new contracts when they are up for renewal. Unfortunately, neither are well positioned to do the line item audits discussed above. As a result, it is common for new contract pricing to be improperly or incompletely implemented. The failed or incomplete pricing implementation Passes the “red flag” review and becomes a grandfathered error, padding the profits of the telecom carriers after passing the “look back” period. Telecom audits based solely on prior period comparisons are built on the faulty assumption that the prior period was correct (which is often untrue). The lack of implementation and ongoing audits contributes significantly to lost value in telecom budgets.

3 - Delayed disconnect or early activation. All carriers are motivated to initiate new billings quickly. Unfortunately, those same carriers do not always wait for the services to be installed. In fact, the definition of “circuit readiness” does not include “customer ability to utilize the circuit” at several major service providers. Likewise, disconnects are also missed and in some instances never removed from billing. We have seen services continue to bill over three years after the disconnect date. Fortunately, customers are not subject to the shrinking Limitations Period (yet) for situations where the carrier has failed to disconnect and stop billing reasonably. Remember to save all correspondence with your telecom providers around service disconnects; they may become incredibly valuable at a later date.


A detailed invoice review can also uncover slamming2 and cramming3 charges, contract compliance errors and redundant or unnecessary services among other common cost savings findings. Telecommunications invoice reviews are a nuanced practice, requiring strict attention to detail and knowledge of potential exceptions (by state, by service, by carrier and more). The FCC and other groups are making efforts to close this gap, but carriers cannot be relied upon to police themselves.

What is the financial impact of telecom overcharges for your firm? Impossible to answer without completing a review, but the answer increasingly is significant. It all starts with line item verification, and 78% of firms are not even taking that first step. While it is an overwhelming task, you do not have to do it alone. Bringing in an expert to help identify errors and benchmark rates can reduce your telecommunications budget by 18%-30%.

Innovation Isn’t Just for Startups – How Traditional Law Firms Can Embrace Change

Nick Quil
President

There is no denying the fundamental shift that is (and has been) underway in the legal industry. As a result, we are witnessing cutting-edge law firms striving to adopt more sustainable business models to meet evolving client needs. While it’s important to discuss theories behind why the legal market historically resists adapting to change, we believe a greater opportunity exists in focusing on how industry leaders can respond to and achieve success in today’s environment.

First and foremost, change management efforts should stem from an immediate or future client need. As corporate counsel continues to put pressure on law firms to increase predictability and value, a unique opportunity exists for firms to implement new capabilities and demonstrate innovation. In an effort to accelerate the pace of change across the legal industry, we’ve outlined the following best practices.

Implement and foster new capabilities

Build out capabilities in a ‘safe’ environment – For law firms to spark innovation across the board, forward-thinking leaders should cultivate an environment that supports creativity, proactive thinking and continuous growth – and reward employees for taking initiative to evolve and expand capabilities to meet client needs. Any new offerings that arise out of these incubation periods should be communicated throughout the firm to ensure employees are motivated to foster innovation and adopt change. 

Create incentives and reward contributors – The key to any type of organizational change is ensuring there are incentives for people to change their mindset and actions. With respect to innovation, individuals should be rewarded for contributions across the three stages of a new idea: generation, implementation, and successful/outcome of the idea. Rewarding employees who embrace innovative practices can propel the firm’s capabilities forward while maintaining a highly productive environment. 

Hone project management and analytics capabilities – Whether it’s implementing business intelligence platforms or revamping client service models, top administrative leaders should develop a vision and corresponding team to bring practice group leaders up to speed. Today’s most innovative firms are those that are capitalizing on project management as both a skill and tool. 

Monitor Investments

Ask fundamental questions – Every law firm should ask themselves some key questions before proceeding to implementation.

  • How do we incubate ideas and prioritize initiatives?
  • How do we define “success” and “failure?”
  • How do we gauge and monitor investments?
  • When should we accelerate or increase an investment? What are the criteria for sun-setting?

Set aside profits each year – Profits can be invested in internal projects as the organization continues to evolve. With the understanding that not every investment will result in a transformative win, law firm leaders should calculate what level of risk they are willing to assign to each project and adjust the level of investment accordingly. Similar to corporations that are setting aside a specific percentage of profits each year for R&D, law firms should be including funds for innovation in their annual budget process.

Develop an investments roadmap – Create an ROI timeline. This allows the project manager to track progress while determining how the firm can learn from “failures” and make adjustments to major investments if needed. 

Encourage a culture that embraces change

To ensure the new capabilities are successful, C-suite executives must foster a culture that supports integrating transformative innovations within the firm. While leadership may not be heavily involved in executing every innovation initiative, it’s essential that they remain committed to and supportive of any changes their firm undergoes. Whether it’s a one-off project or a strategic move, change management will only occur if top executives support the initiatives and effectively communicate them to the firm.

Rethink your client service model

Since client needs are rapidly evolving, fee structures and offerings should be reassessed before moving forward with any other strategic initiatives. Keeping client demands top of mind, law firms are driven to be more creative, innovative and profitable in how they price and deliver their services. Some examples of this innovation that we’re seeing in the legal market today include adjacent business offerings, alternative fee arrangements, in-house incubators and venture capital arms. Each of these models are supported and handled collaboratively by teams of attorneys who work together to deliver the best possible service.

There are many different shades of innovation, and unfortunately they aren’t all achieved with a clear cut, one-size-fits-all approach. But we do know that the legal industry needs more innovators – meaning it’s essential to understand how innovation and creativity can be applied to legal practices and client services. So how can we move the needle on actually putting innovation into practice? HBR Consulting continues to explore this theme through our industry surveys, consulting services and speaking sessions, most notably at our annual Legal Lab event. 

 

Keep Up With the Trends – Succeeding in Today’s Data Center Landscape

Peter Cotseones
Information and Technology Services Director

The data center industry has been undergoing a major transformation over the recent years with new providers offering broader portfolios of robust co-location facilities with mature cloud services at competitive price points. Even in the midst of the industry’s shift, firms continue to recognize data centers as integral components of their overall IT environments.

With ongoing changes in IT systems and service level uptime (availability) expectations, coupled with new providers and service offering opportunities, firms are examining how their current environment can best accommodate their users’ expectations. More CIOs and IT managers are looking to fulfill the “IT anytime, anywhere model” by delivering the necessary performance, uptime and level of fault tolerance. New technologies and services continue to enter the industry, allowing firms to leverage different approaches to their data center and operating model strategies to satisfy business initiatives in a cost effective manner. This ultimately leads firms’ to achieve better value for their IT spend.

Key trends surfacing in the data center industry

While co-location services are a foundational aspect of the data center strategy, firms are now going beyond this traditional approach. Here are some trends we have observed as firms seek to align their data centers with underlying business and IT strategies.

  • Today’s data centers deliver a unified approach to reduce risks and increase operational availability. Migrating data centers from commercial office space is a key initiative for firms. Rather than conducting separate project initiatives, the new approach is inclusive of co-location, disaster recovery and managed services collectively. As firms address aging equipment, they are looking to leverage these additional services to update infrastructure and utility functions while allowing staff to refocus on IT applications, user productivity and governance.
     
  • Disaster recovery now plays a major role in the data center architecture. In the past, disaster recovery was considered a separate project and often was seen as a cost-prohibitive initiative. Today, firms are recognizing that it’s not an optional component. With the ongoing changes, firms are challenged to reevaluate the use of technologies and impact to business operations to develop an effective and functional recovery solution inclusive of failover capabilities.
     
  • Managed services are viewed as relevant and transformational tools. Top executives are beginning to understand and see the value of managed services. Often viewed as lacking an enterprise approach within the legal vertical, managed services are now gaining recognition as it continues to mature and provide cost-effective, secure solutions for strategic IT initiatives. One trending offering is the capability for firms to directly interconnect with cloud providers to leverage hosted application delivery and support. This is becoming a foundational tool to meet performance, security and connectivity requirements for enterprise applications.

4 tips for adopting a modern take on data centers

Since data center infrastructure and operations are critical to the success of your IT strategy, you will want to check the following tips off your to-do list before launching an updated model.

  1. Begin by developing an overall strategy. This should include a complete roadmap with predictable timeline, costs and results. It is critical to keep the timetable on task through the implementation. By leveraging the right combination of internal and external technical and project management expertise, you’ll be able to execute a successful data center project.
     
  2. Work closely with your firm’s business and IT organization. It’s necessary to collaborate across teams in order to create a solution that meets objectives while aligning with the overall technology vision. It is critical to incorporate interactive planning sessions and facilitated workshops to accomplish these goals.
     
  3. Ensure your data center solution addresses key areas. Before signing on with a solutions provider, you’ll want to make sure it covers all the necessary products and services with the appropriate contract provisions – from assessment of your data center needs to centralizing the design to actually installing the infrastructure. Successful data centers service three main areas, including advisory and assessment, data center design and infrastructure delivery models.
     
  4. Choose a provider with a portfolio of qualified partners. The best data center solutions have proven legal-specific reference designs and pre-qualified partners who bring best-in-class facilities, operations, monitoring, management, security and mature cloud infrastructure platforms. This comprehensive range of data center and managed services providers allows the data center to provide targeted solutions in a shorter timeframe.

In this atmosphere of high demand and changing technology, it’s essential to implement a data center solution that supports scalability and high performance systems that enhances lawyer and staff capabilities. To keep pace with your firm’s workload, you expect a data center that ensures a rapid implementation while achieving business and technology goals. After gaining an understanding of today’s trends and considering which data center services your firm needs, you’re ready to adopt a solution with a proven track record.

HBR CONSULTING has a proven track record of working with leading law firms to deliver Data Center Solutions that enhance lawyer and staff capabilities and position IT to deliver on business objectives. For more information or to arrange an exclusive Executive Briefing, please contact Peter Cotseones

Adopting E-discovery as a Business Process to Reduce Litigation Costs

Bobbi Basile
Managing Director

I recently participated in a podcast series to offer insight into how corporate legal departments can better manage their litigation spending by restructuring their e-discovery strategy. Aiming to alleviate some of the pain associated with e-discovery, the panel and I discussed the use of analytics in cutting costs and the value of approaching e-discovery as a business process. Our discussion included three important areas: review of the current landscape, existing cost drivers, and tips for a successful e-discovery strategy.

Current E-Discovery Landscape

Due to an influx of lawsuits and electronic data generated and stored, today’s companies are facing increased litigation costs and risks. The discovery phase alone can represent more than 50% of these costs, according to Protiviti, leading many organizations to prioritize litigation cost prediction. Concurrently, legal departments are bringing the management of e-discovery in-house to optimize their cost-control efforts.

Breaking away from the tradition of manually managing discovery, many legal departments are now taking a hands-on approach in monitoring e-discovery and predicting costs. While it’s certainly not a foreign concept, continuous education must be encouraged so organizations can truly reap the benefits of e-discovery process optimization.

Cost Drivers

With corporate legal costs under a microscope in today’s world, it’s crucial that legal departments understand their key cost drivers so they can effectively adjust their phased discovery strategy as necessary. Here are a few of the major elements driving up e-discovery expenses, as outlined in the podcast:

  • Increased number of lawsuits

  • Volume of electronic data that is generated and stored by companies

  • Number of custodians and average file size per custodian

  • Overly broad approach during the initial scope discussions / negotiations

  • Overly broad approach to the collection process

Tips for Successful E-Discovery

If you’re not currently thinking of e-discovery as a business process, it will end up a burden—costing you both time and money. The following tips will help guide organizations that are looking to roll out updated e-discovery processes.

Take a holistic approach. E-discovery isn’t a singular process, and it shouldn’t be viewed as a one-stop project. When electronic data is broken into a multiple pieces, law departments can manage, measure and optimize efforts more effectively. This approach also offers opportunities for improvement by embedding e-discovery capabilities in current business processes.

Begin with the end in mind. Answers to a few key questions can help you achieve your e-discovery goals:

  • What do you want to be able to report?

  • What do you want to measure?

  • What do you need to measure on in order to create and evaluate success?

  • How do you design the process in order to catch those metrics?

Understand the cost drivers. Legal spend management is all about understanding what factors are driving expenses and capturing data to manage those expenses. To get a better sense of which e-discovery elements make the biggest dent in your budget, you can map and record total discovery time, note labor costs per hour and determine which parts can be automated by technology. Using this strategy, you’re then able to extract inefficient processes and replace them with a fresh approach.

Use a measurable platform. To mitigate hefty spending and downplay outside firms’ management of discovery platforms, legal departments are standardizing all cases and corresponding documents into a single system and requiring that their outside counsel conform to that system as well. This consolidated platform should be armed with a cost-saving tool like technology assisted review (TAR). Equipped with a common platform and effective technology, legal departments will gain greater control over their litigation costs.

E-discovery can be costly – but not doing it right can cost significantly more. That’s where evaluating your current strategy by approaching e-discovery as a business process can enhance company value and performance. In the midst of exploding volumes of data, converting the information to a well-tested technology platform will increase your department’s efficiency and productivity levels while bringing down litigation costs.

Preventing Budget Season Migraines

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With most of us are wrapping up our second favorite time of year (next to income tax season), we can enjoy a brief lull before the chaos of year-end sets in. What joyous time am I referring to? Budgeting Season of course! Year after year we go through the same process and yet somehow it still seems to sneak up on us, leaving us all scrambling until the very last deadline.

Sound all too familiar to you?

Below is a Cliff’s Notes version of how many firm leaders experience the budgeting process:
 

  1. Request (and then wait) for reports from finance for actual versus projectedbudget performance from the previous year
  2. Begin the tedious process of gathering budget requests from all subordinates
  3. Draw up a list of major projects for the coming year, with support from subordinate leaders; while creating business cases to support the “why” along with ballpark estimated costs
  4. Prioritize the project list to determine which are critical and which are just there for negotiating leverage
  5. Submit proposed budget and supporting documentation then wait, continue waiting and wait some more
  6. Receive feedback, which includes a series of questions that you don’t have immediate answers to
  7. Ponder what to do next…
     

While this may be a bit of an exaggeration, it is not that far from the truth at many of the firms. Budgeting is a painful and largely manual process that requires waiting on numerous other parties and then rapidly executing under strict deadlines. Each department is responsible for its own budget and often submits requests to firm leadership in different formats and structures. To further complicate the process, budgeting data often resides in a number of different repositories, such as: CRM for pipeline, HR for staffing, as well as a series of spreadsheets or homegrown databases to provide expense and third-party spending details.

Given how complex and unpleasant this process can be it begs the question, is there a better way? If so, how can some of the key obstacles in the budgeting process be removed from the equation (e.g. getting the relevant data in a digestible format)? Is there a simplified way for firms to draw on past trends to project budget needs for next year? Can a firm easily identify and track which costs are fixed vs. variable and if variable, by how much each year?

Thankfully the answer to all of these questions is yes. Budgeting is a situation where having the right Spend Management System at your firm can make a world of difference. Here is how:

  • Enables real-time budget performance monitoring and reporting throughout the year
  • Spurs engagement via self-service interaction with business managers who no longer have to wait for Finance to provide out-of-date reports
  • Puts firm leaders in the driver seat; allows leaders to easily access spending details and drill all the way down to the narrative/transaction level detail for their budget
  • Provides meaningful baselines for future budget building; eliminates the need to re-invent the wheel each year thus saving time
  • Promotes a culture of awareness around budget performance throughout the year
  • Significantly improves the firm’s ability to forecast future spending requirements by identifying budgetary outliers and red flags; enables firms to adjust on the fly and plan for seasonal and regional variations in consumption

By implementing the right Spend Management System, firms can simplify and increase the efficiency of their annual budgetary process. At the same time they can empower managers, improve financial transparency and promote a culture of departmental accountability. Who knows? You even might have to find a new favorite way to spend all the extra time it frees up.

To learn more about how SpendConnect can help solve your budgeting challenges, visit us at http://www.spendconnect.com/.

Legal Lab: Accelerating the Pace of Change Across the Legal Vertical

Nicholas Quil
President

Many law firms are seeking to keep pace with the rapid changes occurring within the industry today. A law firm’s culture and structure are key factors as clients set requirements to ensure legal services meet their unique needs, firms’ attorney and staff expectations change with every generation and technologies evolve at the speed of light.

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Given the complexity of today’s business environment, how can law firms implement change within the organization without disrupting the day-to-day operations that are critical to ongoing profitability?

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Open and thoughtful communication must exist not only amongst leadership, but also directly with clients so that firms can ensure they are building a competitive, compelling platform that attracts and retains both clients and talent.

Additionally, firms need to consider how certain factors such as service delivery efficiencies, successful integration of laterals, formation of client teams and alignment of administrative staff can play a role in differentiating the firm in the market place.

Legal Lab

To facilitate a more open and direct dialog around change and today’s business landscape, HBR gathered together a select group of industry thought leaders at the first ever Legal Lab.

Legal Lab included attendees from law firms that are currently evaluating or have recently implemented changes that affect the practice of law and overall service delivery model. All C-level functions within the law firm were represented, along with GCs and corporate law departments. To provide additional insight, and unique to this type of gathering, senior leaders from other professional services industries and change management experts were also in attendance.

Over the course of the two-day event, attendees exchanged ideas and heard from industry experts on topics critical to law firms, including:

  • Managing change

  • The impact of change

  • Driving innovation

  • Law firm culture and strategy

  • The law firm of the future

Key Lesson Learned

Although law firm leadership is ultimately responsible for setting strategic direction and vision, leveraging the client as a primary catalyst for change is a common theme among leading firms. Many law firm leaders are making a strategic shift away from internally focused communications, and moving towards external client collaboration. With greater understanding and insight into clients’ challenges and operating environment, firms not only demonstrate the breadth and depth of their legal expertise, but bring to bear the firms’ broader capabilities to develop solutions and drive efficiencies.   

Many other industry events have examined the “increasing demands of clients” as a challenge, however, we believe these demands should be looked at as an opportunity for law firm leaders to engage with clients at a more productive and effective level.

Additional key insights from Legal Lab include:

  • Working with outside counsel: the general counsel point of view

  • Obstacles and elements of successful change

  • Driving force of change within the most innovative firms

  • Effects of the multi-generational workforce on change

  • Leadership/partnership structure influence on change within the firm

  • Profitability and compensation incentives to ignite change

HBR has taken the most insightful lessons learned from Legal Lab and compiled them into an executive summary report, which is available for download.

iManage Buyout from HP - The Next Chapter

On July 21, iManage finalized a buyout of their core business from HP to become iManage, Inc. The announcement brings with it a certain sense of electricity and excitement that has been missing for some time. Past mergers required some thought around how the core business of iManage would integrate into the overall strategy of the larger corporate entities, and what affect that would have on their clients. With this announcement however, everything just feels right.

What makes this different? Why is there so much energy around this announcement? We believe there are a few reasons:

  • Strong leadership - Neil Araujo remains the CEO and will be joined by Rafiq Mohammadi who is returning to the leadership team as the Chief Scientist, as well as Mohit Mutreja who is returning as the Chief Technology Officer.
  • A community focus - It is apparent that the entire leadership team is committed to re-focusing efforts on its community, which consists of clients, partners and other users that have been working together now for over 20 years.
  • Finances -  The iManage leadership team has dedicated itself and its finances on the new company by controlling 70% of the company, with the other 30% coming from Chicago business associates and banking help from BMO Harris according to Crain's; This keeps iManage focused on their core product and innovation, rather than beholden to the business drivers of a private equity firm.

So what does all of this mean for clients? The overall message is that iManage will be able to focus and bring to market the solutions that the community has been asking for with much more agility and expediency. There have been many questions around which products will come forward as a part of this deal so we encourage everyone to read the FAQ that iManage has published. Some of the key products included in the deal are:

  • iManage Work (formerly HP WorkSite)
  • iManage Govern (HP WorkSite Records Manager)
  • iManage Insight (HP Universal Search)
  • iManage Share (HP LinkSite)

Any current hosted customers in HP's cloud can expect to continue to receive support.  Furthermore, it appears that support will eventually be transitioning back to Chicago. In the near-term, customers should continue to contact the same support number that they utilize today.

As a platinum partner for over 15 years, we wish the best for iManage and look forward to working with them in this next chapter of their journey. If you have any questions pertaining to iManage, please contact JB Trexler.  

5 Keys to Managing Telecommunications Expenses

David Cram
Director

One of the most challenging vendor invoice sets for IT and A/P (Accounts Payable) functions to review, validate and approve on a monthly basis are telecommunications invoices.  The invoices arrive in varying formats, are often hundreds or thousands of pages deep and yet surprisingly shallow with information about the service being invoiced. 

As a result, invoice review is neglected, dedicated to an “available” internal resource or outsourced.  While typically an accounting function, this process can provide a solid foundation for category management needed to halt the increasing telecom costs in your budget. 

The following five steps lay out an operating framework for building a “Center of Excellence” around your firm’s telecom invoice review, validation and overall category management.  Each step has its own complexities, but followed sequentially, they each provide the foundation for the follow on step. 

1.  Build and Maintain a Detailed Service Inventory

The foundation for any process improvement initiative in this area is the creation of a comprehensive service inventory with line item detail.  What if you don’t currently manage a detailed service inventory?  You aren’t alone.  A vast majority of firms we work with do not have a trusted and comprehensive service inventory. 

The reason is availability of the information.  At its most basic level, carriers rely on some level of mystery around what need their services fulfill and what the impact would be if a given service was disconnected.  Information needed to build and maintain a detailed service inventory is not included in the monthly invoice.  Supplementary sources are required to fill in the gaps invoicing leaves behind.  Without a detailed service inventory, you cannot even begin a proper invoice validation process. 

Key question: Do I know exactly where every budget dollar is going in my telecommunications spend?
 

2.  Maximize Utility of Online Portals

The next key is to maximize the online portals provided by your vendors.  Most of these portals are provisioned on the account basis, meaning information is only loaded into the portal if the account is associated (and compatible) with the portal recognizing your User ID.  The reality is only a portion of the environment is visible in a given portal interface. 

The result is a “shadow inventory”, comprised of overlooked or unnecessary services, existing outside of the firm’s electronic management tools.  A/P and IT should collaborate with the vendor to bring as much shadow inventory into the light as possible, this will help to make the monthly invoice validation process more streamlined.

Key questions: Is the firm utilizing online portals? How do we know the portals are comprehensive and include all services provided by the vendor?
 

3.  Invoice Validation

There are two primary frameworks for thinking about invoice validation—comparison to prior period and comparison to contract.  A firm needs to look at the invoice validation process at the line item level from both of these perspectives in order to avoid exposure to overcharging and rising expenses.

Finding an electronic tool you can leverage for comparison to prior periods is critical.  Housing this information in a dashboard providing insight to how current invoice expense compares to any custom prior period (e.g. prior month, same month prior year, etc.) will provide oversight often missing from the process today.

The increasing trend in this area is to outsource to a partner who can better focus on validation.  Whether your firm is ahead of the curve or lagging on this front, keep in mind that outsourcing a headache can lead to migraines later on if you do not retain the required transparency and visibility into your service footprint.

Key questions: What is current invoice validation process?  What percentage of overall line items in the invoice are being reviewed?
 

4.  Vendor Credit Obtainment

Telecom vendors earn the reputation for poor billing systems and process like no other supplier vertical.  Some vendors do better jobs than others, but at the end of the day nearly all of them struggle in one aspect or another.  Why should carriers invest in improving systems when, if successful, it will have a negative impact on revenue and profitability?  Credit resolution teams at these vendors are understaffed and long credit resolution times are the norm.

The best practice to minimize the waiting game is to complete invoice validation monthly.  The earlier an issue is identified and disputed, the less time the problem has to compound.  Smaller credit amounts can be approved more quickly with fewer escalations for approval.  Time efficiency is essential; do not wait for the problem to correct itself because it never will.

Key questions: For the time the firm is spending pursuing credits, are the results worthwhile?  If not, are credit opportunities being missed? Or are disputes difficult to resolve quickly?
 

5.  Contract Management is Required

Managing contractual commitments for these services is challenging.  Some services have a specific term commitment (e.g. your mobile phone contract) and others have a revenue commitment either over the year or other time period (monthly, quarterly, contract term, etc.).  It is important to understand each line item in the service inventory and its respective contractual commitment.

Vendors will leverage upcoming contract expirations and resetting rates to “tariff” or “undiscounted” rates.  This tactic is particularly useful on “shadow inventory” as you are asked to sign multiple agreements each year to extend PRI at one location and internet at another location.  Each contract executed in this ad hoc manner kicks the can farther down the road and prevents the realization of any contractual co-terminus objectives.  Achieving this goal can be a long journey but well worth the flexibility, freedom and contract negotiation leverage you maintain into the future.

Key questions:  How many contract surprises do we have per year? How much better could we negotiate if we didn’t have to react to services with rates resetting to tariff costs?
 

The foundational concept of these five steps is straightforward.  However, the execution is complex and the primary reason why more organizations do not place a larger emphasis on keeping this side of the house clean.  Implementing these steps will begin to remove the dread of telecom invoice review and validation, and start the process of creating a constant out of the unknown.

Effective Expense Management Continues to be a Theme for Firms According to the Recently Released Citi Client Advisory Survey

Clay Fox
Senior Director

Based on the Citi Client Advisory Survey, early 2015 showed tepid growth (0.1% increase) in demand, with firms benefitting from a 2.3% increase in revenue driven by a 2.8% increase in rates.  While the overall revenue growth was positive, according to the recent survey, those gains were offset by a 3.9% growth in expenses which starts to chip away at Profit Per Partner and cash flow. Compensation grew by 5.8% which was the key factor in the overall increase in expenses. However, operating expenses were up 2.5% which is slightly higher than overall revenue growth, and highlights the challenges firms are facing in managing their non-revenue based expenditures. 

As you think about the second half of the year and prepare for the 2016 budget cycle here are few items to consider:

  • Costs follow revenues:  During the recession, firms took aggressive steps to reduce expenses, including deferring investments, to offset the drop in revenue. Over the last 12+ months, firms are moving quickly to catch up on the operational gaps created by deferring those investments.  Some of the items include addressing obsolescence (technology, etc.) while also dealing with shifts in the industry’s operating environment (cybersecurity threats, business intelligence tools, etc.). This has caused a jump in expenses that has been noticed by opportunistic vendors who see it as a way to increase revenue and margins.
     
  • How to address: Firms that take a proactive strategic approach to address their operating expenses experience slower expense growth versus firms that take a more reactionary approach. Trends in areas such as Telecoms, Software, Library, Managed Services, etc. (often equating to tens of millions of dollars) can be and should declining as efficiencies within those sectors take hold.  Success in negotiating with vendors comes from taking a holistic view and engaging in a collaborative strategy that focuses on increasing transparency and visibility.  As part of that approach, firms need to have a good understanding of their short-term requirements (changing needs and contract pipeline) and consider what their future (18+ months) might look like. Taking that those steps provides firms the ability to maximize leverage on pricing terms but also ensure they structure an agreement that provides coverage for future purchases or growth.
     
  • Change is here to stay: To be comfortable with the status quo is avoiding the reality that change is the new operating norm. That impact is being felt across all areas in a firm. Technology groups are working to understand the true impact of cloud computing and increase in mobility requirements along with how these areas align with software and hardware strategies.  Real Estate considerations are shifting as rent/lease costs continue to rise and firms focus on the most efficient space design which will have an impact on furniture and CapEx investments.  Libraries are shifting to more on-line access instead of books, and are taking a pragmatic look at content (unique vs. redundant) and how services are delivered (local vs. centralized support). Finally, information governance and records management is being carefully reviewed to determine the best approach to properly managing, controlling and protecting all types of information.  Structuring vendor agreements that find the right balance between cost, flexibility and future considerations is key to maximizing value.
     
  • Food for thought: Vendor Governance strategies are starting to move into the spotlight as more law firm clients, especially financial institutions, are requesting specific information on how firms monitor and manage their vendor community.  Traditionally, this isn’t an area where firms focused or had standardized processes and policies, but the potential risk exposure is increasing thus forcing firms to focus on this space. Developing a sound Vendor Governance program address a couple of key components including Vendor Onboarding, Information & Physical security, Contract Management, and Audit / Compliance.  Going forward, firms are taking steps to formalize their approach to managing vendor relationships which includes starting to develop and implement supporting processes and policies.

Citi’s survey highlights one of the long-term challenges facing firms: the overall market continues to have flat or very low growth in demand.  Successful firms will find ways to not only increase their market share but also find ways to effectively managing their operating expenses.  In the end, the bottom-line impact of $1 in cost savings via effective expense management can yield the same benefit net as $3+ net new revenue (assuming a 33% profit margin). 

E-Discovery: Meeting Client Demands through Advanced Technology

Results of HBR’s Law Firm e-Discovery Strategy Survey

Bobbi Basile
Managing Director

A law firm’s capability to provide electronic discovery (“e-discovery”) services has gone from a novelty to a business necessity. Historically, firms have struggled to find the optimal business model to meet increasing client and business demands.

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The perceived value of reviewing documents has declined over time while the complexity of delivering the service
has substantially increased. Law departments are requiring outside counsel firms to contain the cost of e-discovery. 
Law firms are challenged to respond to increasing client demands while balancing the need to manage risks.
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To learn more, HBR Consulting conducted a survey in March 2015 of Am Law 100 law firms to identify trends pertaining to e-discovery operations and planning around staffing, technology, revenue, and strategy.

Responding to Client Demands

Several themes emerged, which provide a strong indication of how law firms are responding to client and industry e-discovery demands. Survey results reveal that firms are: 

  • Offering the full lifecycle of e-discovery services via in-house operations.
  • Investing in technology assisted review (“TAR”) capabilities, with 78% of firms indicating that they have implemented the technology and the remaining firms adding it this year.
  • Providing perceived higher value advisory services, assisting clients with Information Governance challenges, advising in the defensible use of TAR, and managing the preservation/legal hold process.

A Changing Environment

Although the process of identifying, reviewing and producing relevant documentary evidence in the context of litigation and/or investigations has evolved rapidly, a tension between the cost of reviewing documents and meeting legal and ethical obligations remains.

Innovations have attempted to lower the cost of managing electronic discovery while accelerating the process. The industry has gone from the simple automation of manual activities to advanced computer algorithms in the span of a decade – from nearly Stone Age to Space Age.

Meeting Demands

Several forces are at a confluence in the industry, including:

  • Client demands to contain costs.
  • Judicial acceptance of advanced technologies.
  • Growing document populations.
  • A plethora of service providers.
  • Continuous technological innovations.
  • Expanding sources of digital evidence.
  • Proposed revisions to the discovery rules in the Federal Rules of Civil Procedure.

At the same time, the ever-present legal obligation to take reasonable efforts to provide complete and correct productions of evidence to opposing parties still exists.

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Given client cost management concerns, law firms need to be innovative in the area of e-discovery.

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Embracing Technology

Challenges remain around satisfying clients’ concerns relating to e-discovery costs. Efforts to automate processes, reduce the rates of document reviewers, and apply process improvement disciplines have helped, but the problem persists: clients continue to feel that discovery costs too much and takes too long. Additionally, many clients are unwilling to bear the financial burden and take measures to avoid prolonged litigation whenever possible or make independent arrangements with e-discovery service providers. To counteract these challenges, firms are embracing and investing in TAR capabilities as a way to reduce client costs and concerns.

Innovation is Key

Given client cost management concerns, law firms need to be innovative in the area of e-discovery. Firms that orient the e-discovery offerings to address client needs to contain costs, manage risk, capitalize on reusability of data and work product, provide cross-matter reporting and analysis, and facilitate upstream data reduction will emerge as trusted advisors.

It comes down to profit and risk in regard to law firms providing e-discovery capabilities. Are the e-discovery services providing high value at an acceptable profit margin and is the firm doing a good job at managing risk?

If the answer to either – or both – of those questions is no, law firms need to develop a strategy to address these challenges.

To learn how law firms are responding to these industry demands View the HBR Law Firm e-Discovery Strategy Survey Executive Summary

For information on Law Department e-Discovery trends, read HBR’s Law Department E-Discovery Flash Survey Report.

Protect Your Company's Reputation with Technology & Best Practices in Today's Complex E-Discovery Environment

Kevin Clem
Managing Director

Bobbi Basile recently participated on a distinguished webcast panel exploring how standardizing e-discovery processes supported by metrics, role clarity and technology can protect a company's brand while also reducing its legal spend.  According to Exterro's 2015 Federal Judges Survey on E-Discovery Best Practices and Trends, many legal professionals need significant improvement in the area of e-discovery. Not only do many legal teams lack the knowledge to adequately advise on e-discovery issues, they open up their clients or organizations to unnecessary risks, increased legal spend and reputational harm. To prevent mistakes from being made, legal directors and inside counsel need a strategy for aligning the various stakeholders (clerks, paralegals, attorneys, service providers and law firms) and putting in place the right checks and balances to mitigate e-discovery dangers.

The webcast can be viewed on demand here:  http://www.exterro.com/e-discovery-specialist-series/legal-director

The panelists co-authored a white paper entitled, "Why Legal Directors Are Bringing E-Discovery In House”exploring reasons legal directors are insourcing e-discovery and provides best practices for optimizing e-discovery processes.

To further assist Legal Directors, download The Legal Director's Corporate E-Discovery Strategy Checklist, a must have for any legal executive in today's electronic information age. Simply reference this list to make your e-discovery activities efficient and defensible for your organization. 

Download this checklist to learn:

·   Tips to establish a standardized e-discovery process that will prevent mistakes

·   What policies/tasks must be included from information governance through production to stay defensible

·   Best practices for limiting legal spend within e-discovery activities

Records Management and Security: A Relationship You Can’t Afford to Ignore

Karen Hornbeck
Senior Director

News about cyberattacks against companies seems to be everywhere. Details about who was behind them, who was affected and what information was breached is commonplace in daily headlines today. And while most companies understand the need to better protect and secure their valuable electronic information, many are struggling to determine the best place to start.

In the first of a three-part series, I’m going to talk about where to begin, particularly for those companies that already have a Records Management program in place. In the second post, I’ll discuss why companies shouldn’t ignore the redundant, obsolete and trivial information (ROT), and finally, I’ll discuss how companies should handle the middle layer of information – those items that are not Records, but still provide business value and require management.  

Where to Begin?

Can you think of examples of a company’s high-value electronic information that is sought after by cyber-thieves, but is not also the same information referenced in their Records Management program? Statistically speaking, there are very few instances of high-value information that isn’t also classified as a Record (in terms of its legal and regulatory retention requirements). That being said, most companies have at least a basic Records Management program in place, and therefore a Records Retention Schedule, which means those companies are already aware of what type of information they need to focus on securing. 

To further build on this concept, let’s take a look at some excerpts from a hypothetical Records Retention Schedule, which could be found across any number of organizations:

hornbeck_blog_diagram2.png

These sample excerpts demonstrate some of the basic information that is commonly found on a Records Retention Schedule. In the Clinical Studies example, the original driver for the retention requirements was to provide validation of the clinical trial at a later date. However, the record also contains the PII of patients, namely children, which is clearly valuable information that presents great risks if not secured properly. Same goes for the sample containing I-9 information for employees – the government wants companies to retain this information so that they can audit companies and ensure that hired employees have the necessary citizenship status; however, information like this is a treasure trove for cyber-thieves. 

Referring to the Trade Secrets example, it’s up to a company to determine how long they want to keep trade secrets, as there is no provision under federal law to register trade secrets. However, many companies justify maintaining these records for a longer period of time to ensure that they have necessary proof that they are the originators of an idea (should that idea be stolen and copied). This is a prime example of the type of information that a cyber-thief would want to steal, especially in highly competitive markets, such as pharma, biotech and high-tech. It is worth noting that all companies have trade secrets and the only way to receive protection by the courts is to properly protect them, and provide records containing proof that you protected them. 

I’m sure everyone is aware of the recent Anthem security breach where the PII of children was stolen. It’s reasonable to assume that this information was (or should have been) identified on Anthem’s Records Retention Schedule, but the ultimate question is how this information was secured.  Along these same lines, if you think about any of the recent front-page information security breaches, all of this information should have been identified on the company’s Records Retention Schedule. The main takeaway – if it’s on your Records Retention Schedule, it’s a great place for your Information Security group to begin when prioritizing security projects. 

How Technology Can Help

There are technologies that provide invaluable insight into your information and can determine if it contains SSNs, credit card numbers, dates of birth and other key pieces of information that are especially desirable to cyber-thieves. These technologies can help you zero in on the exact locations of files that contain sensitive information, which is a great place to start when you begin planning your security efforts. I highly recommend that companies seek out a technology partner to perform this type of assessment on a subset of their unstructured information. 

Summary: Use What You Already Know

Companies debating the costs and benefits of developing and implementing a mature Records Management program should realize that in addition to legal and regulatory requirements, there is the added benefit of to having a clear set of priority information for your Information Security group to focus on. And those who already have a mature, or at least a developing, Records Management program in place are already ahead of their competitors in identifying information that needs the highest level of security applied. With cyberattacks posing a very serious threat in the world we live in today, can you afford not to have this conversation with your Information Security team?

A Winning Strategy to Developing a Corporate Legal Hold Playbook

Bobbi Basile
Managing Director

A legal hold is the term used to describe the actions an organization must take in order to preserve all forms of relevant information when a legal obligation arises; it is the first critical step in an effective electronic discovery program. While much has been written about the legal requirements and the pitfalls of failing to effectively implement legal holds, for today’s purposes I will address the processes and decisions that should be considered when developing a Legal Hold Playbook. 

It’s no coincidence that the triad for a successful initiative – people, process and technology – enumerates technology as the third element. By necessity, the people need to be identified to initiate and own the processes, and only then can the requirements for the supporting technology be defined.  

Triggers

An organization must first decide when a legal obligation arises to preserve relevant information. This is often referred to as a ‘trigger.’ In other words, companies should consider which business events necessitate the initiation of the legal hold preservation workflow. A review of the litigation and investigations portfolio and interviews with key stakeholders (e.g., Human Resources, Audit, etc.) can aid in the decision process. Considerations should include:

  1. When to issue a hold

  2. When and how to release a hold

  3. The frequency and intervals of reminders to “refresh” the content of the hold notification (redefining the scope of the hold to clarify the subject matter, time period, etc.)

  4. The logistics of ensuring the preservation of sources of data not associated with a specific individual [A1] (e.g., Information Technology, Human Resources, Records Management, etc.). 

Custodians

Custodian is a fancy term for a ‘person who creates or has in their possession’ relevant information. The process of identifying and prioritizing custodians must be defined and documented. An organization is a fluid environment with employees transitioning internally and exiting on a regular basis.  Determining the identity of the appropriate people with knowledge of a retrospective fact pattern can turn into a frustrating game of Clue, the Corporate Edition. Documenting the resources to consult within the organization will not only expedite the process, but help to ensure that important custodians, or data sources, are not overlooked. Furthermore, the identification of custodians is not a one-time event in a matter and the frequency to add custodians or data sources needs to be documented as a repeatable procedure.

Once the custodians are identified, it is essential to gather and document their patterns of behavior as they relate to creating and storing information. The questions used to elicit this information are often referred to as a ‘data-usage questionnaire.’ The information elicited should include the devices a custodian uses, where he/she stores data (c: drives, network drives, thumb drives, etc.), the use of third-party email applications, etc. The questionnaire should be standardized, documented and refreshed as information is gathered throughout the case and as fact patterns emerge. The data-usage questionnaires inform the downstream collection of relevant data.

Data Sources

Understanding where data is stored, how it is stored, frequency of back-ups and the logistics of collecting data from each location is a topic worthy of its own lengthy discussion. Suffice to say, a Legal Hold Playbook should include, at a minimum: 

  1. Where data is located (active and back-up) and how it is preserved

    • User-created data

    • System-generated data

  2. Data preservation related to employee transitions

  3. Third-Party data (contractors, “cloud” storage, SaaS environments, etc.)

  4. Data preservation in regard to business acquisition and divestitures

  5. The process to identify protected or confidential content

Reporting

The legal hold process should be designed and managed in a manner that permits matter-level and cross-matter reporting. By designing the process with the end in mind, you will be able to develop reports that will be useful in managing the legal hold process at both macro and micro levels.

To aid in estimating the overall scope and budget, matter-centric reporting should include: the status of the hold notices, data usage questionnaires with incomplete responses, the status of data preservation efforts and metrics of the data preservation. The metrics reported should enable counsel to present compelling fact-based burden and expense objections to manage the scope of discovery effectively.

Cross-matter reporting should be designed to enable an organization to gather metrics across all matters to determine the volume and identity of custodians on hold, the volume of data subject to preservation (custodian-based and non-custodial data sources) and which custodians and data sources are on overlapping holds.

In addition to addressing triggers, custodians, data sources and reporting, it is essential that a Legal Hold Playbook include overarching protocols and procedures, such as: 

  1. Roles and responsibilities between stakeholders (Legal, IT, Business Managers, HR, etc.)

  2. Escalation procedures

  3. Preservation procedures per data source/data type (e.g., how to preserve mobile devices, cloud-based data, etc.)

  4. Issuance of holds (content and logistics)

  5. Release of holds (when and how)

Once the strategies, protocols and processes are defined, an appropriate technology can then be selected to automate the procedures to implement legal holds. Ultimately, the defensibility of a company’s Legal Hold Playbook will rest on the soundness of the decisions and effectiveness of the processes and not the technology employed.

 

Buried in the Stacks: Uncovering and Conveying the Value of Your Law Library

Kris Martin
Senior Director

Constance Ard
Senior Consultant

Law firm libraries provide essential business services that are often overlooked by leaders of their organizations. While it may be tempting to assume that firm leadership is to blame for the oversight, the issue often lies in communication gaps that exist between law libraries and firm stakeholders. Historically, senior administrative leaders were partners that directly experienced the value of the library. However, over the past decade, there has been a shift to non-lawyer leadership and as a result the library’s value is no longer apparent to firm leaders.

These new discussions between librarians and stakeholders can be challenging, but if ignored, libraries are left in an undesirable place, as the true value of the department will be lost. Since even the best services may go unrewarded if not recognized, it is critical that libraries develop methods for reporting their true value to key stakeholders.

With an extensive history of working with both librarian and administrator clients, we recommend a 3-step process for bridging the communication gap to ensure law library directors are uncovering and successfully conveying the value of their departments.

1. Gather Quantitative Information for Analysis

Determining the metrics that matter the most within an organization is a crucial step in developing both best practices and an overall communication plan. While recovery and chargeability is often the singular measurement of value, there are additional metrics that can be employed to measure the library’s value, such as cost benefit analysis or traditional return on investment analytics. For example, a review of electronic usage data may lead to changes in subscription renewals or service option decisions, which ultimately helps establish best practices in supplier governance. Similarly, evaluating research-request statistics, along with comparative data and qualitative feedback, creates opportunities to improve service levels and increase library utilization.

2. Utilize Qualitative Information for Illustrations

Although quantitative data is an essential component of the communication process, it does not effectively demonstrate the complete value story. Qualitative information should be utilized to illustrate the application of library services. Qualitative mediums, such as testimonials, are critical components used to demonstrate the impact of library services on an overall business. It is important to communicate qualitative information regularly—whether formally or informally—to relevant stakeholders to ensure that leadership sees how the quantitative data leads to active decision-making. Even if presentations contain exceptional data, they should include the “so what?” factor, which can be demonstrated effectively through qualitative information. It is very critical to show leadership how your information is actionable.

3. Implement a Comprehensive Strategy

Finally, once the appropriate metrics and qualitative information are identified, the most challenging part of the process lies in effectively communicating the metrics to business stakeholders. Relying upon a single method is insufficient as the messaging must appeal to a variety of stakeholder communication preferences. For example, numbers may be more important to CFOs while the COO may prefer qualitative stories that demonstrate the impact of service.

To address the ever-present challenge of quantifying and communicating a law library’s value, HBR’s Research + Information Solutions Team (RIS) collaborated with the American Association of Law Libraries (AALL) to produce a comprehensive report on “The Economic Value of Law Libraries.” The report was designed to provide research and best practices for each library manager to use to determine the value standards held by their own organization, as well as how those values are measured and reported. With this report in your hands, you will be better equipped to implement an effective communication strategy to ensure that the value of your library doesn’t remain buried in the stacks.

To learn more about HBR’s Research + Information Solutions Team (RIS), and how we can partner with your organization, visit our web page.