e-Discovery

Formal project management is often viewed as a technical or administrative discipline. Paralegals, litigation support managers, IT technicians and certified project management professionals (PMPs) usually take on the bulk of the day-to-day, hands-on work. Yet, in today's highly litigious and regulatory environment in which in-house attorneys must oversee the many moving parts of e-discovery, being an effective project manager, with or without the official training, comes with the job. Without the proper guidance, e-discovery can become an expensive morass that exposes a company to great risk.

The larger factors that shape the e-discovery processes are complex and the case law and subsequent requirements are always evolving. In-house attorneys must actively set priorities and serve as the eyes and ears on each matter to maintain defensibility and ensure the best possible outcome for their company.

This article reviews the principles every in-house attorney needs to consider when applying project management principles to e-discovery, including:

• Workflows
• Communications
• Reporting and Metrics
• Quality Control
• Third-Party Management

Principle #1: Workflows

Attorneys are accustomed to establishing high-level legal goals at the beginning of a matter. When it comes to litigation, the ultimate goal is to minimize the cost and risk of the potential action, especially e-discovery. Establishing clear goals and communicating expectations to the legal team at the outset of any case is critical. The second step is to establish clearly defined responsibilities and workflows to ensure that each team member understand the issues involved and what needs to be accomplished across each phase of the matter. And while the attorney may not be the person who maps out all of these details (this is where trained PMP and litigation support professionals excel), he or she must accept a seat at the head of the planning table. By engaging early in the creation of the workflow, in-house attorneys can help their teams address the many legal nuances involved in e-discovery. For example, in cases involving foreign jurisdictions, the workflow might need to address EU privacy restrictions or electronically stored information (ESI) stored in cloud-based systems outside the United States.

Practice Tip #1: Leverage technology to automate internal workflows, make adjustments as case requirements change and ensure accessibility to all involved. This will help ensure that all involved remain on the same page, have visibility into decision chains and stay working towards the same goals.

Principle #2: Communications

Few, if any, e-discovery projects go exactly as planned, and there are always hurdles that, if left unresolved, can grind the whole process to a screeching halt. It's the attorneys who must be proactive in recognizing potential issues early. For example, one of the common trouble spots in e-discovery is communication breakdowns between legal and IT teams. It may sound trite, but legal and IT truly do speak different languages. IT professionals often complain about receiving ill-defined and cumbersome, last-minute requests from legal. Conversely, legal often complains about IT dragging its feet or not doing specifically what is asked of them.

Practice Tip #2: Communicate with all parties at the onset of a matter to explain the general scope of the case, timelines and potential technical requirements. This not only gives them a seat at the table, improving goodwill and collaboration, it also provides them an opportunity to voice concerns and clarify needs while there is still plenty of sand left in the hourglass. Take this same proactive approach to all issues that may arise throughout a matter.

Principle #3: Reporting and Metrics

You can't manage what you can't measure. In e-discovery, the amount of data to be preserved, collected, processed, reviewed and eventually produced can be staggering. Establishing metrics early on in the process, measuring the progress and reporting on the progress is critical. It's the attorneys who must help their teams identify the metrics that need to be measured so all involved can easily monitor progress and recognize issues that might arise along the way. Additionally, analyzing metrics at the outset of a matter facilitates accurate project scoping and cost estimation, which is critical for early case assessment (ECA) and Federal Rules of Civil Procedure 26(f) meet and confer negotiations.

Practice Tip #3: Every matter and litigation type involves unique e-discovery requirements and challenges. The identified metrics should be carefully aligned with the case priorities. Manually collecting all of the specific data, such as relevant search terms, file types, ESI quantities or data volumes, can be incredibly time-consuming and fraught with errors. Technology for data mapping, ECA and e-discovery project management has advanced significantly over the past couple of years and can help automate this process, as well as provide customized, real-time reports that can help attorneys and the legal teams interpret the facts and determine swift actions for the best possible outcomes.

Principle #4: Quality Control

As e-discovery comes under greater judicial scrutiny, quality control is becoming a critically important component of project management during e-discovery. Each process within the EDRM framework must be frequently audited by the attorneys and their staffs. Quality-control measures might include search term testing, file count checks, de-duplication sampling or data sampling to ensure accuracy of privilege calls. These quality-control measures can significantly mitigate mistakes and forestall major surprises that can derail a litigation strategy or, worse, result in judicial sanctions.

Practice Tip #4: Incorporate the metrics established at the outset of the matter into the quality-control program. Secondly, configure the e-discovery workflow to align with these metrics with identified owners and managers. An effective quality control program should include both automated and manual processes with thorough documentation that can be tracked throughout the matter. This documentation can prove invaluable should issues arise with a judge or opposing counsel by providing a clear record of all internal auditing activities and defensible e-discovery practices.

Principle #5: Third-Party Management

e-Discovery is incredibly complex. A typical matter incorporates internal processes, some technological automation, outside counsel representation and other third-party vendors. Failing to adequately monitor third-party actions and the handoffs that occur from one phase of e-discovery to another has come under scrutiny in recent e-discovery cases. See Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011) and N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., Sept. 21, 2011)

Judges have waning patience for legal teams that fail to demonstrate effective quality control measures when mistakes or inconsistencies arise. A key principle in project management is maintaining visibility into various moving parts and being prepared to interpret and act on the information received from all of the involved third parties throughout the course of a matter.

Practice Tip #5: Leverage the discovery workflows set at the beginning of the matter and incorporate the tasks and responsibilities of the third parties into the overall discovery process. Project management technology can help by providing a central control hub from which all tasks can be closely monitored. Whether it's a notification tool for managing legal holds or robust ESI collection tool, having a dashboard that can keep the legal team abreast of all of the moving parts related to a matter at any time is critical. Frequent audits of results from third parties should also be conducted to identify potential errors before ESI is produced to the requesting party or presented in court.

Conclusion

Overseeing the many moving parts of e-discovery is critical for today's in-house attorneys. Without the proper guidance, e-discovery can become a costly morass that exposes a company to unfavorable decisions and potential sanctions. It's the in-house attorneys who are responsible for setting the priorities and serving as the eyes and ears on each matter. Following the five key project management principles detailed in this article can mitigate the potential pitfalls often encountered during e-discovery and help put in place defensible processes that can be applied on every matter.

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Joseph Aakre is an e-Discovery Solutions Specialist at Exterro.

Formal project management is often viewed as a technical or administrative discipline. Paralegals, litigation support managers, IT technicians and certified project management professionals (PMPs) usually take on the bulk of the day-to-day, hands-on work. Yet, in today's highly litigious and regulatory environment in which in-house attorneys must oversee the many moving parts of e-discovery, being an effective project manager, with or without the official training, comes with the job. Without the proper guidance, e-discovery can become an expensive morass that exposes a company to great risk.

The larger factors that shape the e-discovery processes are complex and the case law and subsequent requirements are always evolving. In-house attorneys must actively set priorities and serve as the eyes and ears on each matter to maintain defensibility and ensure the best possible outcome for their company.

This article reviews the principles every in-house attorney needs to consider when applying project management principles to e-discovery, including:

• Workflows
• Communications
• Reporting and Metrics
• Quality Control
• Third-Party Management

Principle #1: Workflows

Attorneys are accustomed to establishing high-level legal goals at the beginning of a matter. When it comes to litigation, the ultimate goal is to minimize the cost and risk of the potential action, especially e-discovery. Establishing clear goals and communicating expectations to the legal team at the outset of any case is critical. The second step is to establish clearly defined responsibilities and workflows to ensure that each team member understand the issues involved and what needs to be accomplished across each phase of the matter. And while the attorney may not be the person who maps out all of these details (this is where trained PMP and litigation support professionals excel), he or she must accept a seat at the head of the planning table. By engaging early in the creation of the workflow, in-house attorneys can help their teams address the many legal nuances involved in e-discovery. For example, in cases involving foreign jurisdictions, the workflow might need to address EU privacy restrictions or electronically stored information (ESI) stored in cloud-based systems outside the United States.

Practice Tip #1: Leverage technology to automate internal workflows, make adjustments as case requirements change and ensure accessibility to all involved. This will help ensure that all involved remain on the same page, have visibility into decision chains and stay working towards the same goals.

Principle #2: Communications

Few, if any, e-discovery projects go exactly as planned, and there are always hurdles that, if left unresolved, can grind the whole process to a screeching halt. It's the attorneys who must be proactive in recognizing potential issues early. For example, one of the common trouble spots in e-discovery is communication breakdowns between legal and IT teams. It may sound trite, but legal and IT truly do speak different languages. IT professionals often complain about receiving ill-defined and cumbersome, last-minute requests from legal. Conversely, legal often complains about IT dragging its feet or not doing specifically what is asked of them.

Practice Tip #2: Communicate with all parties at the onset of a matter to explain the general scope of the case, timelines and potential technical requirements. This not only gives them a seat at the table, improving goodwill and collaboration, it also provides them an opportunity to voice concerns and clarify needs while there is still plenty of sand left in the hourglass. Take this same proactive approach to all issues that may arise throughout a matter.

Principle #3: Reporting and Metrics

You can't manage what you can't measure. In e-discovery, the amount of data to be preserved, collected, processed, reviewed and eventually produced can be staggering. Establishing metrics early on in the process, measuring the progress and reporting on the progress is critical. It's the attorneys who must help their teams identify the metrics that need to be measured so all involved can easily monitor progress and recognize issues that might arise along the way. Additionally, analyzing metrics at the outset of a matter facilitates accurate project scoping and cost estimation, which is critical for early case assessment (ECA) and Federal Rules of Civil Procedure 26(f) meet and confer negotiations.

Practice Tip #3: Every matter and litigation type involves unique e-discovery requirements and challenges. The identified metrics should be carefully aligned with the case priorities. Manually collecting all of the specific data, such as relevant search terms, file types, ESI quantities or data volumes, can be incredibly time-consuming and fraught with errors. Technology for data mapping, ECA and e-discovery project management has advanced significantly over the past couple of years and can help automate this process, as well as provide customized, real-time reports that can help attorneys and the legal teams interpret the facts and determine swift actions for the best possible outcomes.

Principle #4: Quality Control

As e-discovery comes under greater judicial scrutiny, quality control is becoming a critically important component of project management during e-discovery. Each process within the EDRM framework must be frequently audited by the attorneys and their staffs. Quality-control measures might include search term testing, file count checks, de-duplication sampling or data sampling to ensure accuracy of privilege calls. These quality-control measures can significantly mitigate mistakes and forestall major surprises that can derail a litigation strategy or, worse, result in judicial sanctions.

Practice Tip #4: Incorporate the metrics established at the outset of the matter into the quality-control program. Secondly, configure the e-discovery workflow to align with these metrics with identified owners and managers. An effective quality control program should include both automated and manual processes with thorough documentation that can be tracked throughout the matter. This documentation can prove invaluable should issues arise with a judge or opposing counsel by providing a clear record of all internal auditing activities and defensible e-discovery practices.

Principle #5: Third-Party Management

e-Discovery is incredibly complex. A typical matter incorporates internal processes, some technological automation, outside counsel representation and other third-party vendors. Failing to adequately monitor third-party actions and the handoffs that occur from one phase of e-discovery to another has come under scrutiny in recent e-discovery cases. See Thorncreek Apartments III, LLC v. Vill. of Park Forest , Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011) and N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., Sept. 21, 2011)

Judges have waning patience for legal teams that fail to demonstrate effective quality control measures when mistakes or inconsistencies arise. A key principle in project management is maintaining visibility into various moving parts and being prepared to interpret and act on the information received from all of the involved third parties throughout the course of a matter.

Practice Tip #5: Leverage the discovery workflows set at the beginning of the matter and incorporate the tasks and responsibilities of the third parties into the overall discovery process. Project management technology can help by providing a central control hub from which all tasks can be closely monitored. Whether it's a notification tool for managing legal holds or robust ESI collection tool, having a dashboard that can keep the legal team abreast of all of the moving parts related to a matter at any time is critical. Frequent audits of results from third parties should also be conducted to identify potential errors before ESI is produced to the requesting party or presented in court.

Conclusion

Overseeing the many moving parts of e-discovery is critical for today's in-house attorneys. Without the proper guidance, e-discovery can become a costly morass that exposes a company to unfavorable decisions and potential sanctions. It's the in-house attorneys who are responsible for setting the priorities and serving as the eyes and ears on each matter. Following the five key project management principles detailed in this article can mitigate the potential pitfalls often encountered during e-discovery and help put in place defensible processes that can be applied on every matter.

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Joseph Aakre is an e-Discovery Solutions Specialist at Exterro.