After more than a decade in the eDiscovery industry, I often reflect back on my journey and equate our earliest experiences to crossing an ocean in a small leaky boat, facing unchartered seas in unpredictable weather while relying on an inexperienced crew. The eDiscovery industry has been built by pioneers on the backs of unsuspecting early adopter clients and technologists who shared a common vision, the digitization of the legal world and the inevitable mainstream adoption of electronic evidence management.
Today, while the industry continues to evolve and grow, eDiscovery processes and technologies have matured and a well-established community of experienced experts exists to help clients navigate complexities and risks. Solutions are robust, scalable, reliable, easier to learn and, most importantly, are more cost effective than ever been before.
So why isn’t every law firm doing eDiscovery?
Much has been written and discussed about the significant risks to lawyers and clients if eDiscovery continues to be ignored. Despite these often fear mongering tactics, many law firms and lawyers have continued to ignore eDiscovery. Some experts have written that change will only come with changes to the rules, sanctions, court orders, or loss of reputation. While I know this type of forceful approach may eventually prove successful, I believe there is a case for change that is more inspiring and hopefully less painful.
In recent months, I have engaged many of our law firm clients in direct conversation about the level of adoption of eDiscovery within their firms. Without exception, law firms recognize that the idea that lawyers can ignore or avoiding eDiscovery forever is not realistic. Most lawyers I have met with comment that it is not that they don’t want to do eDiscovery, they simply don’t know where to start, don’t have the time to learn the technology and do not want to burden their clients with unnecessary costs and risks, particularly in today’s economic environment.
As a growing technology company, change is part of our daily routine. We have successfully implemented and used a change management model provided to us by a consulting firm named the Fulcrum Group. The model has been so well liked by our staff, that many individuals keep copies of the model on the wall in their office. I thought this model might provide value to law firms who are looking for a place to start and a way to embrace change. It involves six critical elements:
1. Build the Case for Change:
Begin by discussing, debating and building consensus with key stakeholders as to why the adoption of eDiscovery is important within the firm. While the natural place to start may be compliance with jurisdictional rules and practice directions, other reasons could include; mastering eDiscovery will position our law firm as an industry leader; pro-actively addressing eDiscovery considerations will reduce risks for our clients; understanding how to manage electronically stored information (ESI) will provide additional value to our clients and provide a competitive advantage over other law firms; eDiscovery will enable us to have greater access to information and empower us to collaborate more effectively with our internal legal team, with outside experts and with the client.
2. Committed Leadership:
Mastering eDiscovery and implementing change requires committed leadership. Change requires a champion within the firm who has the desire, enthusiasm, power and authority to influence change and is committed to a successful outcome. If the leadership is not present at a senior level within the law firm and the partners are not bought in to the merits of collecting, reviewing and producing electronic evidence, then adopting new methodologies will be challenging…. if not impossible.
3. WIIFM (What’s in it for me?):
Embracing eDiscovery and influencing change requires that individuals within the law firm environment personally experience value over traditional methodologies. If this element is missing, then the initiative will be perceived as insignificant, a waste of time… “not worth it”. WIIFM can sometimes be as simple as demonstrating a single feature or benefit that dramatically improves the results over a traditional approach.
4. Concrete Planning:
Creating a practical and workable plan for implementing eDiscovery processes, best practices, protocols and technology within a law firm is essential to aligning resources, managing costs, meeting deadlines, clarifying the objectives and outlining how they will be achieved. Financial analysis showing a return on investment will provide powerful ammunition for individuals who are resistant to change.
5. Appropriate Tools:
Choosing the right technology and making sure you have the right resources in place are essential to reaching your goals. While some people believe the right technology is all you need to be an eDiscovery expert, my experience has taught me that a technology solution is only as good as the processes, people and plans that have been put in place to support the success of the technology. Always test before your buy to ensure the tools will meet the desired outcomes. If the tools are not properly implemented, don’t meet expectations or simply don’t work, the results can jeopardize your goals and leave stakeholders feeling discouraged and committed to sticking with a traditional approach.
6. Reinforcement:
Evaluate and assess the outcomes of your plan to ensure the results have proven successful and worthwhile. Many people forget to revisit their original goals and to validate that the objectives have not only been met, but have been felt and recognized by stakeholders throughout the organization. This is an opportunity to celebrate achievements and to revisit elements that are not working. If the reinforcement and on-going evaluation is not present, users, stakeholders and clients may not be experiencing the benefits of eDiscovery and the longevity and compliance with the new systems will be unsustainable.
eDiscovery does not have to be challenging, costly or time consuming. To realize the benefits, the first step begins with embracing change.
The other question that remains is change management. How much effort does it take to get someone to change their habits. In our experience many clients initially favour electronic management systems, but then quickly revert to their old ways of doing things.
How do you not only implement eDiscovery, but keep the momentum going and assure strong adoption throughout an organization?
Jonathan – I really respect your comment and love this topic. Sometimes I think the right phrase is "Change leadership" – rather than "Change management". There have been articles written that change occurs when a solution is seven times better than an existing solution. I personally believe that change has to start with satisfying what is already working and then bring additional value. This also speaks to the "reinforcement" phase of our change model. The reinforcement demonstrates the value – if this is missing.. it doesn't stick.