The New Normal – Why you should learn about e-discovery

Why do you need to learn more about e-discovery? Your workplace or your client’s workplace is changing. Or has changed. E-discovery project management is the new normal. In fact, e-discovery has been around longer than you think…

Here’s why you should take the time to learn more about e-discovery (adapted from a recent article on integrating e-discovery into normal operations):

  1. Electronic Discovery can be complicated and has created the need to streamline the process and standardize workflow management for defensibility.
  2. Electronic Discovery exposes organizations to a greater risk when repeatable processes are not implemented. According to most industry think tanks, including The Sedona Conference, the best way to reduce risk in e-discovery is through implementing basic project management processes and methodologies.
  3. Between 1995 – 2000, most businesses made the transition from paper to digital in all communications and record-keeping. In 1970, the FRCP included digital documents in their definition of what was discoverable. In 2006, the FRCP revised their rules to specifically reference ESI (electronically stored information), to include documents that were stored, created and used in an electronic or digital format. To be clear, not a lot of businesses managed their information digitally until the late 1990s so the great unmanageable volume explosion that sparked the broader industry interest in e-discovery didn’t show up in litigation matters until a few years later. However, in larger litigation matters, the problem existed by the late 1990s as described in a 1999 article by Ken Withers. The December 2006 FRCP update simply updated the “wording” of the rule that had been in place since 1970 regarding the definition of a document. So I guess, our new normal is really our old normal?
  4. The data explosion is a problem for those who are/were not managing their data well. The downturn in the economy only exacerbated this issue as the unruly data stores found themselves a part of duty to preserve order and discoverable in litigation. Corporate legal department budgets are under increased scrutiny and now are required to follow the same project management methods other business units have followed for years to manage expenses and deliverables. How do we reign in the cost to move discoverable electronically stored information through the discovery machine? Two words: project management.

E-Discovery does not have to be complicated. Learning about e-discovery does not have to be complicated. It simply requires some time and thought on the front end to draw a map that clearly states what needs to be done, when and by whom. Then do it. And keep track of what is being done so that the next time, you are not reinventing the wheel.  Creating and developing a standard operational process for your organization will involve learning about each phase of the Electronic Discovery Reference Model (EDRM) so that you know what needs to be done at a minimum and in the “big picture” sense for each phase.  It’s next to impossible to effectively participate in a conversation about which approach your organization should take in developing or following a standard if you really do not have a clear understanding of e-discovery basics.  It’s both case law and technology. You should learn about e-discovery because the “new normal” in today’s litigation practice requires you to project manage discovery in a way that reduces risk, is defensible and allows your team of great legal minds to focus on strategy and the merits of the case.

 

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EDPM: Managing Expectations

The tools are not as important as the process. Technology can only take your project so far as seen in Thorncreek Apartments III, LLC v. Village of Park Forest.

Village mistakenly uploaded 159 privileged documents for Thorncreek as part of the production, which included every document marked as privileged, as it expected Kroll’s software to automatically withhold privileged documents.

The emphasis on the word EXPECTED is mine. Technology does not run on its own… it needs people. Technology needs project managers who understand what the technology can and can not and/or should and should not do. Technology and project managers both need project stakeholders (i.e. attorneys & paralegals/ clients) who will take the time to listen and understand that we must work together to effectively plan for quality control and then take the time to actually do the quality checks before productions.  However, as noted in the quote below from a law firm’s blog, e-discovery project management is a TEAM effort and a single person probably should not have been expected to do everything themselves.

In analyzing whether Village waived its claim of privilege with respect to six inadvertently produced documents, the Court noted that simply marking documents as “responsive,” “non-responsive” and “privileged” falls “well short of what we would expect for an adequate account of the review procedure.” Village argued that its efforts to protect against waiver were reasonable because it believed that by marking the documents as “privileged’ in Kroll’s online platform, they would be automatically withheld. However, the Court found that Village employed only a single attorney to review the documents to be produced and Village failed to review the documents uploaded for Thorncreek to view for nine months. Finally, the Court cited the lack of a privilege log in finding that Village did not act reasonably to protect its claim of privilege. In doing so, the court held that Village waived privilege to the six documents.

Here are a few other online resources that discuss what went wrong with this case…remember: The tools are not as important as the process.  It’s not that there is anything wrong with online review … the issue here is that the project management methodology was lacking the step for quality control and understanding of the technology (tools) being used.

Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver : Electronic Discovery Law.

Don’t blame your vendor.

This article offers some practical tips for managing expectations:

  1. communicate clearly with vendors, don’t “assume” that documents marked “privileged” will be withheld from the production – tell the vendor to withhold them (even if the vendor is an experienced litigation support vendor);
  2. produce a privilege log early on and deliver it to the opposing counsel – if a document on the privilege log is in the production set, and opposing counsel discovers that, s/he will be obligated to inform you;
  3. better yet, use your privilege log to spot-check the vendor to assure that documents marked “privileged” are, in fact, withheld from the production;
  4. even if you are in the throes of a busy deposition schedule, when you learn of an inadvertent disclosure, act quickly to identify the scope of the problem and request the return of privileged documents.

How to Manage an ESI Review Team

The following links point to a series of posts from the E-Discovery Daily Blog. The focus of the content walks you step by step in best practices for managing an e-discovery document review team.

1.       Introduction

2.       Clearly Define Objectives

3.       Get a Handle on the Document Collection

4.       First Steps in Drafting Criteria

5.       Drafting Responsive Criteria – a Step-by-Step Guide

6.       Drafting Privileged Criteria

7.       Applying Topic Codes in the Document Review

8.       Identify a Project Manager

9.       Prepare a Review Plan

10.   Assembling the Project Team

11.   Training a Review Team

12.   Starting the Project

13.   Keeping Decisions in the Hands of the Attorneys

14.   Ensuring High-Quality, Consistent Work

15.   Keep the Staff Motivated

16.   Use the Team’s Knowledge

Strategic Legal Technology :: Legal Project Management (LPM) Overview [Live Blog Post]

Need to distinguish between process improvement and LPM. Ideally, firms would improve processes before focusing on project management. But in reality, many firms have gotten on the LPM bandwagon first. Hypothesis is that LPM is less culturally challenging than is process improvement. But LPM does not in and of itself lead to efficient execution of matters – to achieve this require legal process improvement.

via Strategic Legal Technology :: Legal Project Management (LPM) Overview [Live Blog Post].

 

EDRM Jobs Guide « The Electronic Discovery Reference Model

EDRM Jobs Guide « The Electronic Discovery Reference Model.

This guide provides a reference for developing a litigation support / e-discovery project team. You may wish to share this guide with your hiring managers and human resources team who are assisting you with the hiring process for qualified litigation support professionals and e-discovery project managers. If you are a litigation support manager, this guide will provide you with tools and resources for expanding your team and/or retaining your top talent.

Lawyers as Project Managers | Legal Talk Network

Lawyers as Project Managers | Legal Talk Network.

The tools are not as important as the process. There is a growing industry trend that is looking for attorneys to increase / improve their project management skills. Listen to this podcast from Legal Talk Network’s Kennedy-Mighell Report to hear the latest discussion on this topic.