Uncovering the Mysteries of Disclosure

January 3, 2007

“Where can I go to get a full list of suppliers and operators in this area?” the Editor asked. The context was the dearth of information available to lawyers about the basics of electronic disclosure. Laurence Eastham assumed, not unreasonably, that a mature and competitive market would at the least have a simple directory which might serve as a starting point for anyone wanting – or needing, urgently – to give electronic disclosure.

There is no such list. This article looks at why this is so, and suggests that the market is ripe for the business model predicted by Professor Richard Susskind for law firms themselves – a move towards packaged, price-listed solutions for everyday disclosure. It ends with invitations to suppliers, and their users, to help compile a basic directory of products and services.

They Want Your Business Really

The conclusion, to anticipate a bit, is that many more firms could, should, and would like to give Disclosure electronically but find the suppliers strangely reluctant to tell them what is available. There are plenty of words and figures out there, but the words are either very technical or are irrelevant to what you want to do today, and the figures are all about large volumes and big teams, giving no clue as to what it will cost you to do a straightforward eDisclosure exercise.

There is nothing deliberate or devious about this. The suppliers would love to hear from you. A litigation services provider has equipment, rent and staff costs to cover and needs a constant throughput of work. The ideal job for them is a 100,000 document exercise sent by a firm who knows the ropes, but ten jobs at 10,000 documents or 40 jobs at 2,500 documents from new clients will feed the machines and keep the staff usefully employed. It is the same for the software suppliers – the product which boasts of its ability to handle vast volumes efficiently works no less well on smaller ones and the supplier’s own costs do not depend on the size of your case.

There may be economies of scale; there are often fixed costs which appear disproportionably large for smaller jobs; there is certainly a minimum number of documents below which the investment is not worth making, particularly if the users are unskilled so that training costs have to be factored into the budget. But there is a large middle ground, presently unserved by litigation support providers, which would provide profitable work for them and would meet an existing requirement. Part of the purpose of this article is to flush out more suppliers and more information from them.

If I am wrong in what I say about the services suppliers – perhaps they have all the work they want from their big clients – then there is room for others. They exist, but their quality is variable, their individual shares are small and their marketing is lousy. Let’s poke a stick into the nest and see what happens.

Converting the Converted into Buyers

Since this article is aimed at the converted, I can skip the persuasive stuff – ignore the Why? and go straight to the How? How is it that interested people, keen to buy products and services from (presumably) willing sellers, and able to afford the cost, are not doing so? Let us start by asking if these are the correct premises to argue from.

Are people actually interested?

Expensive conferences and seminars on eDisclosure sell out. This article was commissioned in response to a consistent and widespread demand by SCL members for more information. The well-known legal services providers look prosperous enough and their lights burn late. Yes, people are interested.

Can they afford to buy?

Part of the problem is that the pricing structures are obscure, so firms are in the dark as to what the outlay will be. In most cases, it is not the firm which bears the cost but the client, and they will probably not be buying but renting, on a basis geared to volumes and timescales. The client will be interested in anything which makes the lawyer more efficient.  Can they afford NOT to buy?

Is it right to say that people are not buying?

Firms clearly are buying litigation software and services and some of these are new entrants making a positive decision to move in that direction. For the most part, however, the buyers are either the same firms coming back for more or firms who have been instructed in a one-off matter which cannot sensibly be run without technology. There are many whose active interest has not translated into a purchase.

Are the sellers really keen to sell?

I have suggested above that suppliers of software and services will be genuinely pleased to hear from you and, indeed, devote considerable resources to trying to find you. The next part of this article suggests why they are not reaching all those who attend the conferences or those who ask the SCL to provide more information.

Missing the Target

Getting a litigation support product – software or services – is like getting a car. The experts know what they want, what to expect of it and where to get it. They may get some comparative quotations, but otherwise they just get on with it. At the opposite extreme, many are content with the car they have had for years; it does nothing beyond getting from A to B, its running costs are high, but it does the job. In car terms it is an old Volvo. In the litigation office it is a word processor and a photocopier.

Our aspirant, who lies between these extremes, wants a modern vehicle which performs the basic functions properly and economically without frills. The car web sites and brochures fall into two main categories, neither of which are very helpful for someone whose enthusiasm (and whose determination to make the right choice) outstrips his knowledge. Ferrari’s web site has much about design, with technical details lovingly described and even “bloodlines” – but nothing about the price. Bentley is much the same and has a “Configurator” to let me design my own car.  I gave up and turned to Ford. They offered me 11 different base models, each of which had an uncountable number of variants.

If I had had a few hours to spare, I could have found the exact car for my needs (probably including useful features I did not know existed) and its price. I could have telephoned and spoken to a smart salesman who might have sorted me out, but I found it all rather confusing, intimidating even, and gave up. My Skoda is fine for now.

I think that buying legal support services and software is much like this – worse in fact, since you can at least find a list of all car makers and their contact details. The home pages of the providers’ web sites stress the biggest jobs, the most complex services, the most sophisticated functionality. They talk of volumes far in excess of most litigation, and do so in language which emphasises their special knowledge. People (especially professional people, and particularly male professional people) like to feel at least partially on top of a subject before they talk to a salesman. As much as anything, they want to avoid admitting that they cannot afford something they have enquired about – have you ever telephoned an upmarket estate agent to ask about a “price on application” property?.

To add to this, the context is fairly complex as well. The seminars all major on esoteric aspects – multi-jurisdictional issues, the significance of metadata and so on. The court rules on disclosure have changed, and the commentary on the rules and on the prospective changes to the rules (eg from LiST, the Litigation Support Technology Group) is at the think-tank level. There is a lot to chew over, and it is easy to conclude that the word-processor-and-photocopier approach, like my Skoda, will probably do for now. The lawyer misses a chance to transform his handling of litigation. The supplier loses a sale.

A Changing Marketplace

So why do the suppliers not make it easier to get a feel for their products, services and prices? Let me say at once that most of them (those you can find, anyway) are helpful and approachable, and that if you were to pick up the phone to them, you would very quickly find yourself in the hands of an expert who will identify your needs and put a transparent price and a timescale on meeting them. But how many potential customers do not take that step?

It is natural for suppliers to emphasise their greatest skills and biggest triumphs. The bulk of the support providers’ present income derives from the expert firms with big cases, so they stress those factors which might win them this business from their rivals – I bet your own web site does the same. Any seller, whether the MD or a salesman on commission, is likely to devote more time to the potential big hits.

The suppliers of support services, like Bentley, want to make it look as if they are offering a bespoke service, tailored to your needs on your present case. In fact the approach to most cases is fairly standardised – the basic tasks of scanning, coding, converting and checking data are much the same for nearly any job – and the processes which handle them are systematised, with steps which are either fully automated or regulated by procedure guides and thus susceptible to fixed pricing per unit. Some companies will bundle the services with a software vehicle and quote for the whole thing packaged as one supply. The software itself is increasingly commoditised, with all the functionality built in or available as options.

The alert amongst you will have seen all these words  – bespoke, standardised, systematised, packaged, commoditised – together in a different context with “Copyright Richard Susskind” below them. They represent Susskind’s “move to the right”, his expression to describe the evolution of legal services as technology forces law firms to deliver their work product differently, and to apply their skills and knowledge in ways which best fit the clients’ changing needs and increasing awareness.

Furthermore, the service providers face competition not just from their peers but from new generations of litigation applications which give users the potential to do more for themselves. I recently saw some litigation software which includes a standard, no-extra-cost module for importing electronic files and mail files, and which builds a documents database from them before your eyes, complete with metadata. It will also print off bar-coded pages to interleave between paper files so that, once scanned, the paper documents fall into place in the database ready for coding.

It is not the only application with such facilities, but it is the first one I have seen which makes evident the possibility that law firms might do their own data imports from raw electronic files. This sort of application is not going to drive the litigation support service providers out of business, but it will force a reappraisal of what they are selling and to whom. The mystery (and all professional service suppliers, especially lawyers, are selling the keys to mysteries) will evaporate somewhat when lawyers might choose to do their own data imports, relegating the service providers to mere scanners.

It will not, I think, happen quite like that, because the providers will realign their offerings. The bespoke service for the big or difficult cases will remain, but the suppliers will offer in parallel a packaged, price-listed service for a wider market. Because a firm can do more in-house (whether hosting the data or manipulating it) does not mean that they will choose to do so if someone offers the same services at a competitive – and transparent – price.

Making a Start

So what does a law firm do when it decides to go down the road towards electronic Disclosure and cannot even find a directory of suppliers to start from? The aspirants (those who are interested but whose interest has not yet turned into action) probably know that they need their paper, mail files and Word documents turned into a single electronic resource and that the end-product will sit in a database somewhere, but they have varying degrees of understanding as to how it happens, who does what and what it will cost.

A future article will describe the options in some detail and look specifically at key points which are given here in summary form:

Question or Concept                         Content or Answer

There are three primary sources of documents           Mail files, electronic files e.g. Word or Excel and paper

Three broad ways of assembling disclosure info        (a) traditional print-and-list, (b) ask a support provider to handle it or (c) do it in-house with the aid of software designed for the purpose

What size cases justify eDisclosure?                      There is no universal answer, but a number of variables relating to the case itself, your in-house expertise and any costs which are fixed regardless of volumes

What software should I buy?                                   Don’t buy, rent. Follow recommendations, don’t get hung up on minutiae – your requirements are unlikely to be very different from those of others. Focus on support and responsiveness.

Host it in house or externally?                                Externally, nearly always.

Getting the data in – do it yourself or send it out?     Depends on your in-house skills and the chosen software – an iterative decision in that your choice of software may first reflect your election as between in-house and external providers, and then drive it.

Which support services provider is the best or right for me?         Size is not necessarily a determining factor – there are some very good small operators and some dire big ones – but recommendation is. Look first for a recommendation appropriate to your needs. If you cannot find anyone to recommend a provider, then stick with the big ones.


There are few straight answers here, and those of you hoping for “buy software X, use provider Y and it will cost you Z” may be disappointed. There are many inter-dependent factors which are case-specific or which vary from firm to firm. The market for bespoke services will continue to exist and grow but there is plenty of scope for packaged services from a wider range of providers.

The SCL is aiming to assemble a directory of suppliers (see below). A market requires buyers as well as sellers and those whose enthusiasm to buy has been dented by lack of information need to say so. The invitation to suppliers to set out their stalls is accompanied by a request from would-be buyers to say what has put them off.


You will detect in this article three things – an implicit conviction (I have not sought to prove it) that eDisclosure is appropriate and necessary for a much wider range of litigation than it is presently used for, a regret that the providers of software and services seem inaccessible, and a conviction that this is curable to the benefit of both buyers and sellers.

Three things will blow open the doors of apparent exclusivity.

The first lies in litigation applications like the one described above which put it in the hands of some firms to do their own data imports – you do not have to do it, but the fact that you might will stir things up.

The second is a directory of providers such as the SCL is planning. A transparent list is essential – ideally it would be of those who are qualified, and recommended, for work in this area but having a list of those who claim to be qualified is a useful start.

The third will follow from the second and, indirectly, from the operation of Richard Susskind’s assumptions about market developments. His predictions as to the move from bespoke to packaged services are based on the view that one or more suppliers – law firms in his model – will “break ranks” and start supplying services in a different way. The main change will be the development of a packaged and priced service aimed at standard eDisclosure of routine cases.

To achieve this, there must be some open competition, and a directory promoted by a reputable and independent body is the obvious way to start.

I don’t think my friends in the market leaders will blackball me for these suggestions which are, after all, aimed at opening the market to new clients as well as new providers. They will keep their high-end work for large firms, major corporates and governments, and stand to gain new clients – there are a finite number of gilt-edged clients.

The chief beneficiaries will be you, the law firms. I do not predict that prices will drop, but then I do not think that price per se has been a brake on the expansion of the market. The brake has been a lack of information about price as well as about other aspects of the available services. That may be about to change.

Chris Dale qualified as a solicitor in 1980 and has been engaged in litigation support consultancy, software development and data handling since 1993. His web site at www.chrisdalelawyersupport.co.uk includes comment on the work of the LiST and other aspects of eDisclosure. His telephone number is 01865 463033

Invitation to Litigation Support Providers

Computers & Law invites submissions from suppliers of goods and services relevant to the giving and receiving of electronic Disclosure. Our aim is to produce a summary list to be a starting-point for law firms and others with an interest in this area and to publish it in a form which our readers can keep .

This is not a competition, nor is it a paid-for listing. What we want is a short statement telling us:

• who you are and how to find you
• what part of the problem you address
• how you differentiate yourself from others.
Each submission should be accompanied by the name of at least one satisfied client (with firm, name, contact and telephone number) who is willing to speak positively about your products and services.

Contact lseastham@aol.com with ‘Invitation to LSPs’ as the title of your e-mail.

Invitation to Users and Potential Users 

If you have advice or information about the use of eDisclosure products then we want to hear from you.

If you have questions you want providers to answer or views on what can make market choices easier in this confusing filed then we want to hear from you.

Contact lseastham@aol.com with ‘eDisclosure User’ as the title of your e-mail.