Aphelion Insider

Not all LPOs are created the same.  For starters, project staffing and management options can run the gamut from temporary foreign contract attorneys to on-demand domestic associates to former partners from highly regarded U.S. and international firms.  Some LPOs compete on price, expertise, or breadth of service, and others a combination of all three. These companies’ corporate structures often mimic these competitive strategies by operating as solely domestic or foreign entities or as a hybrid onshore/offshore solution.  From a buyer’s perspective, there are pros and cons to working with a company that has adopted any one of these approaches.  Ultimately though, the goal is to devise a robust, efficient methodology for determining, ex ante, which among an ever growing number of LPOs offers the best combination of expertise, commitment to quality, affordability, flexibility and so on for a particular project - in sum, who offers the best value.      

Given the number of options available and the risks associated with making a bad decision, selecting the right LPO can be a difficult task.  And unlike purchasing a new car, a buyer can’t simply “kick the tires” or “check the oil” to determine value.  The calculus is more nuanced and subjective. 

To help protect LPO buyers from making a bad decision or suffering buyer’s remorse, below is a list of questions that should be asked before making any purchasing decision.  These questions can be asked in various contexts, whether during a phone interview or an RFI/RFP.  While they were originally formulated for an LPO providing large scale document review services, they are applicable to the entire industry.  If an LPO can’t provide straight forward answers, a buyer should consider looking elsewhere.

1) Can I take your services for “a test drive?”

• While a buyer can’t “kick the tires,” many LPOs are willing to conduct a pilot at cost, or possibly, for free. Such a test-run will often ease a buyer’s potential concern with utilizing offshore resources.

2) Do you have pictures of the office where the project will be performed?    

• Pictures can help a buyer to realize that many foreign lawyers operate in highly professional, highly secure work environments that may meet or exceed Western standards. If pictures cannot easily be provided, this may be an indicator of substandard security or environmental controls.

3)  If things go wrong, who do I sue?

• While litigation support companies are supposed to help clients navigate through law suits, not create them, sometimes things go wrong. If this is the case, a buyer does not and should not have to seek a remedy in a foreign jurisdiction. As such, buyers should beware of using companies without a domestic presence.

4) If an LPO uses offshore resources to cut down on costs, does it use temporary staff or full-time employees with project specific training and experience?

• American litigation is not straightforward. Even seemingly simple responsiveness reviews have their complexities. Buyers should look for a company that has at least some fulltime attorneys who will be involved with the project. Certain large projects may require the use of on demand staffing, but it’s important that the core group of reviewers have proven skill sets.

5) For past projects that are cited as references, has the LPO managed the project or simply acted as an intermediary staffing agency, providing temporary employees who were otherwise managed by outside counsel or another third party?

• A number of domestic staffing agencies have recently entered the LPO space. Unfortunately, some of these companies have cited projects on which they only staffed temporary employees as if, in fact, they were responsible for the day-to-day management. Some may even attempt to pass off their revenues from staffing domestic contract attorneys as revenues generated from Indian attorneys. Clearly such services are not analogous, so it’s important that buyers probe for actual management, not staffing, experience.

6) Ask a potential LPO to provide the relevant experience of each member of the management team that will be supervising the buyer’s specific project.  This question should also address the size and value of document review projects managed by the project management team and whether anyone on the team has experience responding to opposing counsel’s objections to a privilege log or to a court’s requests concerning production.

• While the credentials of an LPO’s executive management team are important, what really matters are the credentials of the individuals who are directly overseeing day-to-day project operations. This is no different than choosing outside counsel - diligent clients want to know about the experience of the individual partners and senior associates who will manage their matters.

7) Does the LPO have licensed U.S. attorneys who are physically present in its offshore location(s) to manage the project?

• For purposes of complying with ethical obligations as well as ensuring proper project execution, it’s imperative that an LPO have licensed U.S. attorneys on the ground in foreign jurisdictions. Specific ratios of U.S. to foreign lawyers will vary from project to project based on size, complexity, and time constraints.