Get Smart: Part 5
As the data footprint for most companies continues to grow at an impressive rate, it is becoming more difficult to fully grasp all sources of discoverable data. Industry-leading in-house legal teams are engaged in up-front discovery planning along with their IT, risk, and compliance counterparts, but many other legal teams struggle with collecting and managing this information. Cooperative planning and other proactive measures, at the onset of litigation, help ensure that data is located, preserved, and collected in the most efficient and repeatable manner. Legal teams that implement these steps are realizing significant cost savings year over year, and are better prepared for the possibility of unexpected litigation. We examine 10 strategies that companies should have in place to better manage the eDiscovery litigation process.
1. Standardize and Document Repeatable Processes
We’ve all been there – an unfavorable ruling has you collecting more data than expected. You scramble to set up a document review, knowing that a set of relevant data is expected to be produced in short order. Every litigation is different, but the first steps of the discovery process do not have to be. Instituting a standard set of procedures will allow your discovery team to become more familiar with how the legal department chooses to address the discovery process. A playbook will memorialize best practices, end-to-end procedures from litigation hold tracking through production, and other lessons learned that will be applicable in most cases. Regardless of department size or litigation volume, having a documented process increases defensibility and ensures your resources are aligned at the onset of discovery. A step-by-step tutorial for tasks performed a few times a year, and a refresher on tasks performed daily, are a invaluable resource for onboarding new employees and external vendors.
2. Define Team Roles and Responsibilities
There is much more to roles and responsibilities on a matter than simply assuming vendors handle the data, consultants improve the process, and outside counsel manages the legal strategy. Each team member brings strengths and experiences that lend themselves to their eventual role in a specific piece of litigation. Defining clear roles and responsibilities at the onset of litigation boosts efficiency and ensures tasks are not left in a vague or incomplete state. Assigning tasks throughout discovery requires routine meetings and ongoing project oversight, handled internally or through an outside party.
Establishing clear lines of communication gives team members visibility into who is working on what tasks, and helps avoid overlap. If you want to reduce spend, roles and responsibilities should be centered on striking the balance between outsourcing tasks and ensuring that relevant stakeholders are informed.
3. Develop a Case Strategy
Not all litigation is created equal. The actions, anticipations, and goals of one case are likely to differ from those of the next. Preparing for each unique litigation means having a baseline set of processes and providers in place that can be scaled up or down to meet the demands of that particular case. Strategy is formed by the various attorneys involved in the case and is the process by which counsel considers a variety of factors, with a focus first on the desired outcome. It is imperative that the entire team understands the expectations for the case (i.e. settlement or trial) and the liability and legal precedent involved. The strategy sets the planning framework for the resources, technologies, and time frames necessary to achieve the desired outcomes.
4. Review Preservation Requirements
The obligation to preserve electronic information starts as soon as it can be “reasonably anticipated” that litigation will be filed. While the determination for when a party should reasonably anticipate litigation has been argued throughout the courts, it is certain that the sanctions associated with neglecting preservation requirements can be substantial. The duty to preserve starts with a responsibility to inform. Litigation holds are intended to inform custodians of their preservation requirements, and contain information about the case and documents to be preserved. Preparing for litigation means having a process in place to distribute litigation holds and track custodian responses confirming receipt, and that action is being taken to preserve all required data. Do not allow for disagreements over the policies and procedures for preserving data to dominate trial proceedings. Companies should consider implementing legal hold software to automate the distribution of notices and reminders. Develop a process to ensure non-traditional data sources (e.g., text messages, voicemail) are preserved.
The expansion of data sources poses challenges for data preservation, and it is imperative that the case team understands the measures being taken before and during litigation to minimize the risk of spoliation.
5. Create a Data Source Catalog
An effective way to get a deeper understanding of the types of data your company creates and stores is to create a data source catalog. Most experienced in-house legal teams are familiar with the systems from which they need to collect data. But what happens when people transition, or a case requires information from a system no one has used in years? A data source catalog contains the details of how the company manages and stores its data in a single location that can be referenced by others. This should be created and available for use by discovery teams. At a minimum, a data source catalog should be able to answer the following questions:
- Who owns the system?
- What kinds of data, and for what time periods, are contained within the system?
- Where is the data physically stored?
- Are there any legacy or successor systems?
- In what format can data be exported from the system?
Keeping this information updated and readily available for members of the legal team ensures the appropriate systems are being preserved and speeds up data collection. As an added benefit, it can also serve as an outreach program for the legal team to improve its relationship with others in the organization. An important aspect of implementing a data source catalog is acclimating a system owner to proactively contact the legal team when changes occur with the system.
6. Establish a List of Preferred Providers
As fewer cases make it to trial, it’s becoming clear that discovery is where many cases are being won and lost. Effectively preparing for trial means assembling a team capable of both executing an effective legal strategy and leveraging technology to create the most cost-effective outcome. To react quickly, you must consider who will collect and process your data, who will manage your reviews, and who you can trust to oversee the entire process.
Most companies outsource significant portions of their discovery operations. Ideally, companies would have a formalized list of vendors and consultants that are in place or on call to work with outside counsel to ease the burden of discovery. An optimal list of providers will ensure the right resources are available at a predictable and often more favorable cost. Providers should be periodically evaluated against their competitors or other baselines to ensure a continued best price and value for their services. The changing vendor and technology landscape is now allowing companies to handle more work like collection, early case assessment (ECA), and in-house culling, which can be economically favorable.
7. Utilize Early Case Assessment (ECA)
It is important to learn as much about your case as early as possible. ECA should be the new norm. The goal of the assessment should be to gain as many insights into the case as possible, as early as possible, to help define strategy and reduce overall costs while ensuring a path to a successful outcome.
Given that eDiscovery is one of the largest components of the overall case budget, you will want to understand the potential scope of litigation, including the number of custodians, and what types of data need to be collected. There are many tools and in-house solutions available and IT teams should investigate options, and work with your preferred vendors to assist in ECA efforts. These tools allow you to process a sample of custodian data, test preliminary search terms and date ranges, and use analytics to extrapolate results. ECA can help uncover key documents early in a case, and also help more accurately forecast discovery costs and formulate expected collection and review timelines.
8. Arm Outside Counsel for the Meet & Confer
What steps can a company take to ensure outside counsel begins negotiating from a position of strength? First, you can create a tool kit for your outside counsel, including previous interrogatory responses, the eDiscovery playbook, custodian and Rule 30(b)(6) witness lists, and relevant entries from your data source catalog. With this information, outside counsel will be prepared to answer questions that arise in the meet and confer in real-time. Also, reviewing key systems contained in the data source catalog and developing an understanding of how data within your organization is stored and retrieved will allow outside counsel to obtain a favorable collection date range and scope. Hopefully, with enough knowledge up front, you can avoid collecting from a legacy email system or another unwieldy enterprise system. A well-prepared outside counsel can significantly narrow the overall discovery scope and cost from the beginning of the case.
9. Get It Right the First Time
No one wants to have the opposing side point out an error in a collection date range, or missing fields from the production of data from a pertinent system. Allow time to review deliverables and confirm collection specifications with the appropriate resources, so you can get it right the first time. Document productions are the culminating efforts in a process that often involves hundreds of hours of phone calls, interviews, collection activities, and review. Having to redo a production or admit an error can undo previous efforts and sour hard-earned goodwill. Make sure your discovery vendor has enough time to prepare a production that can be checked for quality control before distribution.
10. Recognize Where You Can Improve Processes
Once litigation is over, it is important to regroup with the team and conduct a post-project meeting to discuss what went well and what could have gone better over the course of the litigation. Addressing challenges that arose, getting consensus from all stakeholders with the best ways to remedy those challenges, and implementing clear steps for process improvement will help build a more efficient and repeatable discovery process.
By using the strategies outlined above, legal teams and outside counsel should feel confident that the company can adequately respond to any litigation in a defensible and efficient manner. And one final GET SMART tip, keep in mind that companies are ever-changing, so the related policies and procedures will need to be revisited periodically to keep you properly prepared to respond to eDiscovery litigation.
EDRM Model: edrm.net
Originally created with its first version in 2005, this iconic EDRM diagram still remains as the most referenced schematic used throughout eDiscovery as a standard process descriptor. Now a part of the Duke Law Center for Judicial Studies, this organization provides for standards, guidelines, and practical resources for legal professionals and eDiscovery practitioners. More detailed guides for each stage are readily available at the website (edrm.net). In particular, among these resources are a detailed methodology for the Information Governance stage and a framework for Project Management.
Example 1: Discovery Program Management
The discovery team of a leading global pharmaceutical company faced an unanticipated spike with regulatory investigations and associated discovery requests. The legal department took this opportunity to re-assess the overall discovery governing model to investigate ways to cost-effectively manage resources including potentially outsourcing certain tasks, while maintaining defensible processes to meet the company’s increasing regulatory discovery demands. In a joint effort of the discovery, risk management, legal, and information departments, a team was formed to analyze options and take action to identify and implement business process-improvement efforts and cost-saving initiatives. Areas reviewed included:
- Upfront planning for downstream discovery needs
- Scoping and addressing litigation hold requirements
- Data source identification and collection
- Processing decisions and error reporting
- Review setup and workflow management
- Production quality control
- Case closing data remediation
As a result, various improvements were implemented. An internal “center of excellence” concept was formed to address projects and requests previously performed by individuals across many other departments and among various entities of the company. Workflow for larger and more complex or higher-risk cases were segmented from that of smaller matters. Meet and confer procedures were standardized. External independent contractors were strategically used to perform specialty case-level support tasks outside of normal processing requests, including select aspects of technology-assisted review and a more formalized early-case assessment. Overall, these changes resulted in an estimated cost savings of over $5 million, an overall reduction of risk, and an increase in the quality assurance of processes.
Example 2: Strategic External Cost Analysis
A domestic financial services company was tasked with implementing an enterprise-wide cost-reduction initiative. The scope of the initiative included the legal department and a review of all externally outsourced tasks, procedures and associated expenditures.
Over $180 million of historic legal invoice data was analyzed to understand spend and staffing patterns and trends. An assessment was completed that compared and aligned industry-standard billing rates and practices. Opportunities were identified to shift routines and lower-risk work from national providers to a consolidated panel of regional counsel and associated providers, along with negotiated volume discounts. Detailed data to support pricing discussions was developed for each negotiation packet including spend analysis dashboards, qualitative performance feedback on key matters, and alternative pricing structure examples.
The analysis positioned the company with a potential 12% reduction in legal spend. It also provided a blueprint for implementation including more robust external vendor management procedures, such as adherence to best practice billing guidelines, implementation of volume discounts, use of detailed billing task codes, and outsourcing of discovery tasks to lower-cost and equal quality eDiscovery vendors.
The Sedona Conference: thesedonaconference.org
A must see for relevant resource materials including: Information Governance Principles, Best Practices Recommendations and Principles for Addressing Electronic Document Production, and other publications addressing eDiscovery and digital information management.