eDiscovery’s Greatest Challenge to Lawyers

There is little doubt that eDiscovery presents a challenge to lawyers.

Identifying exactly what kind of a challenge it is has proven to be a little harder to define. Some would consider the sheer volume of ESI to be the greatest challenge. Others would say it’s the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it’s the fragility/persistence paradox that has most lawyers scrambling to catch up.

You can read any number of blogs, articles and white papers that present different aspects of the complexities of eDiscovery as being the single greatest challenge (generally the one that the writer purports their product or service will solve). I’m going to present one more for your consideration: the need to be proactive.

Litigators are not known for being proactive. The litigation process as a whole is traditionally one that involves reaction. (A nice overview of the reactive litigator can be found here). Especially for litigators working on the defense side, the traditional approach has been one of wait and see, delay, and only take action when opposing counsel pushes hard.

Reactive litigating is not the way to handle eDiscovery.

As any eDiscovery 101 seminar will tell you, ESI requires early action. You can’t sit around waiting for opposing counsel to make a request for additional production before reluctantly spending the extra money to preserve those additional records. As is likely clear to most reading this blog, those unpreserved records have quite possibly gone the way of the dodo, or are at least going to blow your client’s budget for the discovery phase of the litigation thanks to those expensive-to-restore backup tapes.

Paper documents that were relevant to a litigation at least had the decency to be located in only a few places. Once you’d delved into the Records Warehouse, or ordered up the archived boxes from storage, and got your client to copy every bit of paper in their (sometimes) clearly labeled files; you could largely rest assured that you had taken every reasonable step to preserve the relevant documents.

ESI, as we all know, is a little different. Dozens of types of data storage medium exist, and most of the data does not come in neatly labeled files, folders and boxes, but as unstructured data mixed in with email invites to hockey games, personal documents, relevant documents saved into the wrong folder, proprietary databases which contain data that is largely irrelevant (and sensitive to boot!) . . . and this is just on the corporate network. We haven’t even got to the PST’s that people copied over onto USB thumb drives, or those old floppies sitting in someone’s secretary’s desk with the illegible labels.

With ESI, volume itself is not the issue. Litigators have had to deal with large volumes of paper in some litigation matters for years, which (thanks to paper’s format) is not easily managed without actually reading every single one of the documents; at least in part. ESI may be dramatically more voluminous, but there are ever-more effective tools to help you locate your needles in the ever-growing haystack. (See The Sedona Conference’s paper on the subject).

And new technology itself is not the issue. Lawyers have taken to their PDA’s and Blackberries readily enough. Most lawyers are not completely technophobic, and some law schools recognize the need to train lawyers in legal-specific technology as well as the more traditional lawyering skills.

Nor is it just about the jargon. After all, law is full of jargon too and almost anyone can grasp the basic eDiscovery jargon after a day at an eDiscovery conference or a quick perusal of The Sedona Conference’s glossary.

What is lacking is a general understanding that to properly handle an eDiscovery case requires planning. Not just a broad game plan, or a roadmap, or an initial case assessment, but really detailed planning. (See, for example, Principle Two of the Sedona Canada Guidelines) This means being proactive. It means thinking of all the what-ifs and then planning for them. Up-front. Before opposing counsel thinks of them and starts asking you about them.

Planning is boring. For a generation of litigators that have learned to thrive on working through the night to deal with the latest crisis (the kudos assigned to those lawyers and staff that do so is sufficient proof of this, I think), it is a deadly dull idea. Besides, isn’t all that nitty-gritty detail stuff what law clerks are for?

The truth is, however, that the stakes are somewhat higher with ESI. Volume of data, complexity of data storage systems, fragility and persistence of ESI all means that a simple, one-size-fits-all plan is no longer sufficient. Failure to tailor the eDiscovery plan to the specifics of the litigation will result in significantly and unnecessary higher costs (and much higher risks) for your client. The combination of higher costs and higher risks means that lawyers must involve themselves in the “nitty-gritty” of planning for eDiscovery.

I am an advocate of using project management techniques for planning and managing eDiscovery cases. (Some of my former colleagues may roll their eyes at this point). Not because project management in and of itself is a magical panacea, but because it can provide a framework to guide you through each step.

Project management is not only a way of ensuring that everything on the eDiscovery checklist is taken care of, but also formalizes who needs to communicate what, to whom, and when; communication being the basis of effective teamwork. Just having someone on the team to stay on top of and manage all the little details; whether their title is “Project Manager”, “Partner”, or “Litigation Support Coordinator”; ensures that the right information is communicated to the right person at the right time.

A project manager acts as a clearing-house for all information that needs to be passed around the team in order to both design an appropriate eDiscovery plan, and to enact that eDiscovery plan. It’s all too easy with the complexities and hidden stumbling blocks in any eDiscovery project to miss something due to miscommunication, lack of planning, lack of foresight or simple forgetfulness. Having one person to stay on top of everyone’s to-do lists (and to bug them about it) and to keep moving the process along even when other crises focus everyone’s attention elsewhere is essential.

A trained project manager understands that the role is not only one of facilitating communication and nagging people, but also of thinking up “what-if” scenarios, and then planning for them. It is really about managing risk through planning. What lawyer (or client, for that matter) doesn’t like reducing risk?

I am not alone in thinking that project management, as a formalized framework for eDiscovery litigation, can help get lawyers out of the reactive mode and into the proactive mode. Baker Robbins, a consulting firm with extensive experience in managing large eDiscovery matters, gave a two day seminar at Borden Ladner Gervais, LLP’s Toronto office in 2007 that was attended by law clerks and litigation support staff from several of the larger law firms in Toronto. Of the thirty or so attendees, there were, I believe, only two or three lawyers in attendance. Pity.

I believe that as in-house counsel learn the value of modern business tools and methods designed to increase efficiency and effectiveness; such as project management, knowledge management, business intelligence, and so on; they will increasingly demand use of those same tools and methods by their favoured outside counsel. After all law firms are businesses too, and should expect to operate by the same rules as any other business.

The smart litigator will get a handle on project management now; not just because the client expects it, but because the smart litigator knows this is the way to offer better value than the competition.

Comments

  1. Email Archiving

    “Litigators are not known for being proactive… Reactive litigating is not the way to handle eDiscovery.”

    Really, I think it all depends on the occurence of a critical event that causes significant enough pain to push the change.

  2. Debbie: Knowing e-discovery is inevitable, I argue an enterprise can use technology proactively to make its e-records more benign. What do you think? –Ben
    http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html

  3. Welcome Ben. An old friend from the days of Counsel Connect. Readers should get familiar with his books on technology law, including The Law of Electronic Commerce and Business Law and Computer Security.

  4. Ben, I quite agree. Judging by recent coverage in Information Week on various solutions for eDiscovery woes (most notably email archiving systems, as this one example references), the (proactive) word is getting out in the corporate world.

  5. Debbie: A good article on what has and is becoming a major challenge not only for our US peers, but for global corporations doing business in and around the US.

    As a PM previously leading TDBFG’s EDiscovery Initiative and now on the vendor side implementing the leading Legal Hold management software, I have seen the evolution across the full spectrum of corporations and law firms. I’d offer that while it is advantageous for the inhouse and outside counsel to have a solid understanding of project management, the emerging trend in fact is the creation of a EDiscovery Counsel role. This role, generally charged with the responsibility to ensure that the corporation is prepared for EDiscovery challenges is the logical competency centre for project management as well.

    Needless to say, EDiscovery continues to change not only the way that the law profession operates, but infact also how corporations operate.

  6. Debbie

    You raise some interesting points – as a lawyer and a certified project manager (PMP) I feel duty bound to respond. The idea of getting lawyers up to speed on project management is absolutely right. But it is easier said than done, for a variety of reasons:

    1. Cost – Project Management also brings with it an overhead. Vendors and consultants generally add 15% – 20% to the total cost of the engagement for project management purposes.

    2. One cannot simply take a lawyer of 10 years standing and instantly turn them into a project manager. It’s a very different discipline, a different mindset and a different environment in which the two professions operate. For example, Project Managers seem to want to take an age to plan everything out before doing anything. Lawyers HAVE to move asap to meet external deadlines.

    3. They don’t teach this stuff in law schools unfortunately.

    4. That said, there is actually a limit to what you CAN teach in the classroom. Taking about issues such as scope, risk, quality make little sense in a vacuum. You need some scars to show. It is extremely easy to call oneself a project manager but there is good reason why the PMP examination is only available to those individuals who have got a couple of thousand hours of project management experience behind them.

    We are going to see lawyers increasingly embrace the project management discipline but it is not an easy or straight-forward fit.

    Andrew Terrett
    Director of Knowledge Management
    Borden Ladner Gervais LLP

  7. Good points, and I agree that lawyers may not be the ones to actually take on a project management role for the reasons you outline above. An appreciation of what it can do for their practice is all that’s really necessary, much as the lawyer that understands BES is a rare creature indeed, but there is no shortage of lawyers using Blackberries.

    Typically I have found that it’s rare that lawyers are moving as fast as is necessary for eDiscovery; external deadlines notwithstanding. Perhaps this is because the timetable internalized by most litigators after years of paper-based litigating allows for substantial delay in getting down to the collection and review of the documents. And absent deliberate malfeasance on the part of a client, paper documents are typically preserved even if their location is uncertain. The same cannot be said of electronic data.

    There are exceptions to this, of course. Sometimes the deadlines (such as in OSC matters) are too tight for anything other than frantic scrambling. Even then, having a clearly communicated project “template”, if you will, can at least inform the team what should be done, and by whom; so that (dare I say it) the appropriate shortcuts can be taken in an informed manner.