Flash Area

The E-Discovery process can be quite complex. There are a lot of moving parts and massive data volumes from many types data sources, from backup tapes, to email servers, and legacy systems.  There can be multiple custodians, including both current and former employees, in addition to multiple outside counsel reviewing for relevance and privilege.  Additional considerations include data privacy issues, particularly in international litigation crossing national borders.

These practical considerations then must get filtered through the myriad of process complexities and wide range of technologies that can be utilized at each phase of the e-discovery lifecycle.  There are early case assessment technologies, data preservation and collection utilities, offline media index and search applications, email and e-document index and search software, concept based categorization and review technologies – the list continually grows and the number of technology providers expands at nearly the same rate.

Click Any Heading Below For More Detail

► The Fundamental Challenges for E-Discovery Project Managers

The E-Discovery process can be quite complex. There are a lot of moving parts and massive data volumes from many types data sources, from backup tapes, to email servers, and legacy systems.  There can be multiple custodians, including both current and former employees, in addition to multiple outside counsel reviewing for relevance and privilege.  Additional considerations include data privacy issues, particularly in international litigation crossing national borders.

These practical considerations then must get filtered through the myriad of process complexities and wide range of technologies that can be utilized at each phase of the e-discovery lifecycle.  There are early case assessment technologies, data preservation and collection utilities, offline media index and search applications, email and e-document index and search software, concept based categorization and review technologies – the list continually grows and the number of technology providers expands at nearly the same rate.

► Lawyers vs. Project Managers – Two Different Breeds

Lawyers are trained to analyze and strategize -- not to categorize, prioritize, and quantify.

The four objectives of legal project management are:

  1. Clarified goals
  2. Lowered risk
  3. Cost control and
  4. Timely delivery of value

E-discovery project managers are not managing or evaluating content, but rather the developing and supervising the workflow of collecting, storing, encoding, tracking, and producing thousands or millions of documents. That's a matter of project management.

E-Discovery project managers work to minimize missteps and deliver more predictable, reliable, and cost-effective results.  EDD Project managers are gaining greater prominence in the industry as the size of data sets in litigation continue to grow, concerns over cost controls are heightened, and risks of errors waiving privilege proliferate.  Project management has become an increasingly important component of e-discovery as they ensure that processes are repeatable, measurable, and defensible.
 
Projects have three main constraints that demand constant attention: time, cost, and scope.  

► Key Considerations and Decisions For E-Discovery Project Managers
  • Scope of the information to be collected, processed, reviewed and produced, and any decisions about staging production
  • Structure of the project team for each of the main activities (collection, processing…), including description of skills required
  • Resourcing – internal resources combined with external contracts, and their availability
  • Budget for external resources, services and tools
  • Roles and responsibilities of the members of the team
  • Governance – who makes decisions about scope, budget, resources and timeframes
  • Assumptions (e.g. volumes expected from sources, rates of collection, processing and review, availability of internal resources, time required for tool acquisition, among others)
  • Risks and Scope Change (e.g. new allegations or defenses added to pleadings, unexpected problems with degraded or encrypted media or files) that could threaten delivery of the project within budget and schedule, and mitigation strategies
  • Documentation to be developed – such as coding and processing manuals, instructions for review for relevance and privilege, etc.
  • Work breakdown structure of the tasks, their dependencies, who is assigned to each and the schedule
  • Quality control – processes used to ensure integrity and completeness, and conformance with scope for collection and processing, and compliance with instructions for review.
  • Communications, including progress reporting, exception reporting, problem tracking and resolution.
► Role of Project Managers

Project managers also hold responsibility for ensuring that a project's many loose ends are properly managed. By regularly checking in with litigation team members, a project manager captures these open issues and monitors them until they are completed or genuinely become moot.

Communication
There are several levels of communication where an e-discovery project manager must be fluent: 1) speaking "legalese" with lawyers/sponsors, paralegals; 2) speaking "techie" with the IT professionals; and 3) explaining high-level metrics for outside clients and supervisors and other project stakeholders.

The vast majority of setbacks with e-discovery projects can be avoided if an e-discovery project manager concentrates on setting proper expectations, high frequency communication, and documenting every step in the process.

Documentation
One of the most critical components of any e-discovery project is the documentation of every single action. In other words, if you are not documenting every step and task, then you are falling below the acceptable level of care in your responsibilities.

Documentation is so important because without the documentation, we have no legal "proof" of what was done, why we did it, or the outcome of the actions.

Documentation protocol should include:

  • Client, matter, and task
  • Who requested the task (e.g., stakeholder, lawyer, client)
  • Date and time the task was started and completed
  • Name of person who engaged or completed the task
  • Notes, summary, problems encountered, resolutions
  • Software and hardware used
  • Chain-of-custody considerations (where were the results delivered?)
► E-Discovery Project Manager Value Adds

The value proposition for project management goes something like this. It takes time and effort to proactively manage a project. This cost is more than made up for over the life of the project by:

  • Completing projects more quickly and cheaply. – Cost and litigation budgets in general are typically the focus of the client. Most corporations have project managers within their business model and expect that their lawyers and legal teams do also. It’s not just about being quick and cheap but more so about not wasting time and money.
  • Predictability.    How can we predict costs and schedules if every litigation or e-discovery project reinvents the wheel? Project documentation includes metrics.
  • Saving effort and cost with proactive scope management. How much data (ESI) do we need to review? How much of it is relevant? What tools and resources exist to help us only review what we need to? An experienced e-discovery project manager can help you to navigate these waters.
  •  Resolving problems more quickly.  Project management includes a communications and problem solving plan/ protocol.
  •  Resolving future risk before the problems occur.
    Experience and metrics will allow you to assess risks and plan a solution or solution options in advance.
  • Communicating and managing expectations with clients, team members and stakeholders more effectively. Managing expectations is a big deal. This is extremely difficult to do without the guidance of a project manager and a documented plan of action.
More focus on metrics and fact-based decision making. Decisions based in facts derived from well documented metrics will provide the consistency of methodology, the courts are looking for.
► E-Discovery Project Management As Risk Mitigation

The risks associated with “getting it wrong” today can be extremely high.  Two of the more well-known cases, Qualcomm, Inc. v. Broadcom Corporation (2007) and Coleman (Parent) Holdings v. Morgan Stanley & Co, Inc. (2005) involved significant costs due to failures in the process of identifying, preserving and producing potentially relevant documents.

Traditionally, the e-discovery process was compartmentalized with little formal coordination.  Paralegals, counsel, or vendors typically managed activities within a specific phase of the lifecycle.  For example, a paralegal would perform the preservation and collection management tasks while a vendor would perform the review management activities.  Today, people are recognizing the importance of project management.  The growth in certifications such as Project Management Professional (PMP), Lean Six Sigma, and Association of Certified E-Discovery Specialists (ACEDS) bears this out. 

With the growth in cost-conscious corporate litigants and law firms looking to squeeze every dollar in the e-discovery process amidst growing new technologies, the need for experienced, capable project managers stands out as the glue holding the entire e-discovery process together through a combination of experience, methodology, and technology. 

Project management helps alleviate confusion.  By implementing sound project management, one can ensure that there will be a well documented, reasonable, and repeatable approach to the e-discovery process. Success arises from implementation of a repeatable, documented, e-discovery process, including the following industry best practices:

  •  
  • Use of pre-developed workflows for tasks and activities of each lifecycle
  • Ability to assign and track the status of tasks  
  • Use of metrics and statistics of the data collected, indexed, and searched  
  • Calendaring and project deadline management 
  • Detailed reporting
  • A searchable repository for project related documents, reports, invoices and materials 
  • Communications plan to provide status updates to all involved individuals.
► Success Factors For E-Discovery Project Managers

E-Discovery project managers require a broader frame of reference than the EDRM in order to succeed. While it is essential that the project manager account for each of the interrelated tasks that make up the major stages outlined in the EDRM—including, but not limited to, collection, processing, review, analysis and production—she must also consider and plan for a number of higher-level activities that look at the entire process, its stakeholders and its many participants as a whole. These activities include budgeting, scheduling, allocation of human and technological resources, assessment of scope and risk, managing change, and, perhaps most crucially, communication across all levels.

The e-discovery project manager should be thinking about the project in five phases: initiating, planning, executing, controlling and monitoring and closing. Your project manager's focus must constantly shift back and forth between the minutest details of a project and its broader outlines. Think of the five process groups as comprising a dynamic sequence of progressive and overlapping steps. Once a project is initiated, each subsequent phase takes a fresh and more inclusive look at the entire project as a whole, and incorporates changes based on information gathered in previous steps.

► E-Discovery Project Managers Build & Manage Work Flows

Phase I: Preservation, Planning & Budgeting

  • Identify ESI Sources and Stakeholders (Client Outside Counsel, EDD Vendor, Opposing Counsel, Court (deadlines/dates)
  • Engage Preservation/Legal Hold
  • Discovery Plan
  • Develop initial budget including parameters most likely to change

Phase II: Collection

  • Interviews with key custodians
  • Includes Forensic data capture

Phase III: Data Processing, Search, and Filtering

  • Review iterative results
  • Develop keyword search terms in conjunction with client and outside counsel
  • Identify and prepare platform for review

Phase IV: Review

  • Determine location for review
  • Identify resources to conduct review
  • Train reviewers on platform
  • Train reviewers on case details/issues

Phase V: Production

  • Quality Control (includes: statistical sampling, reviewer cross-checks business rules, exception reporting)
  • Privilege Logs
  • Redaction
  • Final review prior to production to opposing counsel
  • Determine forms of production
  • Test load files and output structure

For more information, email ProjectManager@cambridgeprofessionals.com or call (404) 842-2800