E-discovery has changed dramatically over the last decade. Not only must parties adhere to more complex data privacy and information governance requirements, but e-discovery, once the primary domain of law firm lawyers, can no longer be carried out without a full roster of experts, like skilled project managers, data privacy consultants, analytics experts, and 24/7 support and managed review teams. Choosing a discovery provider is already a daunting task for a law firm or corporate legal department on a case-by-case basis, but the stakes increase exponentially when picking a long-term discovery partner.
Traditionally, there have been two models at a firm or corporation’s disposal when selecting a partner: a master services agreement (MSA) or a managed services agreement.
An MSA relationship provides standard terms and conditions and pricing for ease of engagement on a case-by-case basis. Once the MSA is hashed out, this arrangement is fairly streamlined to operate under and easy to exit quickly if the relationship sours since there is no consumption-based obligation to purchase any services. The limitations of an MSA relationship often center on less consistency with workflows and standard operating procedures between individual matters and less flexibility in the provider’s tech stack and custom offerings. This is understandable from the provider’s perspective since it cannot count on a reliable revenue stream when staffing and budgeting. Capital-intensive improvements that are customized specifically for MSA clients are a risky proposition for most providers, particularly for newer clients without a robust history of repeat business. The lack of contractually-guaranteed revenue will, on some level, limit what the provider is willing to build.
Managed services is a term that has evolved almost as much as the broader discovery industry over the last decade. Originally, it meant a relationship that focused on the bulk buying of hosting space or third-party management of dedicated infrastructure under a multi-year subscription. In other instances, the concept added dedicated project management to the extent that the provider has personnel who work exclusively for the client as an extension of their team.
Organizations have many options when setting up a managed services agreement. Providers can carve out subscription space from a standard instance of a hosting platform, they can create a multi-tenancy solution, or provide an infrastructure-as-a-service (IaaS) model. More recently, IaaS has been slowly giving way to the rise of cloud-based solutions. Regardless, the core goal remains the same: the ability to bulk purchase hosting on an e-discovery platform (often including processing capabilities as well). The service provider takes on the burden of infrastructure investment, software licensing, staffing, maintenance, data security, and project-level support. But in return, it secures a minimum revenue commitment over multiple years—valuable in an otherwise pay-as-you-go industry.
Prima facie, this sounds like a win-win situation. What is not to like, and why isn’t there more adoption of a managed services model? In truth, these pros come with increased potential risk. Managed services agreement challenges to a client are contractual. What happens if I overbought space? Do I use it or lose it? What happens if I didn’t buy a big enough bundle? Am I stuck paying a per-GB overage at an inflated price, or are there additional tiers that I can buy into as I go? These are areas where money can be wasted to the benefit of the service provider, but it doesn’t necessarily lead to a poor overall experience.
As cynical as it sounds, the subscription model leads lesser providers to let service levels lag after the honeymoon period, as they assume that contractual obligations and sheer momentum will often keep dissatisfied customers in the fold under all but the worst circumstances. Once a client is onboarded for a three-year contract with your new provider, what service levels will they maintain? Will you receive good service during onboarding only to find errors, missed deadlines, lack of responsiveness, and personnel turnover becoming the norm over time? Once this becomes a notable concern, you are probably approaching the end of your first year of the contract. What recourse do you have? Is there an escape clause in the contract that allows you to break your subscription? How fast will a company that’s not motivated to work with you surrender your data to a new provider? What time and monetary cost would this have on you or your client?
What if you could have all the benefits of an MSA and managed services agreement without the drawbacks? Enterprise program management (EPM) provides just that. EPM is a holistic approach to the client relationship where the client’s needs are addressed globally across all matters. The program is custom-built from the ground up for each client because no two clients are the same. Sliding scales of pricing discounts as well as dedicated PM teams that learn the nuances of a client’s IT environment and data are integral to the success. There are no yearly subscriptions that might not be fully utilized. Rather, EPM is always correctly sized for each overarching client and individual matter so that budgets are identifiable and proportional.
When looking for EPM, make sure it has that extra layer of consultative problem-solving, workflow normalization, playbook documentation, custom tech development, and dedicated staffing solutions. In many instances, these resources can be brought to bear without any additional cost to the client.
Traditional labels and constructs like managed services exist to be challenged and re-imagined. EPM places its core principles on organic growth and client retention above all else.