eDiscovery is subject to trends, like fashion or the latest iPhone application. The newest trend climbing the charts is project management, so I thought it was timely to write about project planning before all the cool kids go sit at another table.
Now, I've had some experience with project planning in my time, and what I've learned is that no plan survives contact with (fill in the blank). Some have even used this as an excuse NOT to plan, since the estimates will always be off, targets will be missed and you'll spend all your time explaining why. However, this misses the point, since the object of the exercise is to figure out what you know, and more importantly, what you don't know.
If this is beginning to sound like the gibberish you'd get in Wonderland, pause for a moment and reflect on this: if you know what you don't know, you can build in extra time and resources as a contingency. If you know what you don't know, you can make it a priority to go looking for information to fill in the blank and firm up your estimates.
Some things to consider in drafting the plan:
- 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 (e.g. new allegations or defences 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, and problem tracking and resolution.
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More: in Practice of Law: Practice Management | from Peg Duncan
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Peg,
This post comes in handy as project management has been making important leeway in the legal market, more or less as it did a couple of years ago in the IT arena. Perhaps e-discovery is part of the equation in that legal and IT departments are cross-pollinating in the course of an e-discovery project or to ensure their corporation's litigation readiness.
It seems you allude to 2 different types of project management. The first one in the course of a law suit or an investigation where the project must be scoped, "milestoned", budgeted for, etc. as opposed, or should I say in complement, to litigation readiness which includes a fair deal of project management. My experience is that the development and implementation of a litigation readiness plan, with its policies, processes, teams and technologies, forces organisations to think in terms of project management. Accordingly, once the plan is fully implemented, organisations that end up being sued or investigate have a clear roadmap with checklists which help them approach their case with a pro-active project management strategy.
To me, project management is the only way to effectively track and document the process that was followed. Accordingly, it is the only way to prove one's approach was proportionate and defensible.
Cheers!
Dj)
Peg, Dominic
I am reminded of the quote, usually attributed to General Dwight D. Eisenhower, who knew a thing or two about planning (e.g. D-Day!)
"In preparing for battle, I have always found that plans are useless, but planning is indispensable."
Andrew Terrett, PMP
Director of Knowledge Management
Borden Ladner Gervais LLP
Hello Peg,
Great post and I am in full agreement with the need for a solid plan. In fact, without a proper plan and solid eDiscovery methodology, one may have serious trouble defending their position in court!
Penalties, fines, the cost of redoing the work, new strict deadlines for new productions, and bad PR can seriously harm you. Every day there is more case law on parties that are sanctioned for data spoliation. It is critical that you carefully follow the rules that are in place. Leverage audits reports and implement quality control mechanisms. Know what you do with information and know exactly how your tools work. Also, your counsel must be able to defend your processes in court against objections from opposing counsel (and your external counsel is not always the most technical person!).
Responding to requests for electronic information can be perplexing. First, identifying responsive information from huge stores of data can be time consuming, disruptive, and costly. Second, extracting data from computers in ways that reliably preserve evidence is not a simple undertaking, as data can easily be altered either intentionally or accidentally. Recognizing these facts, litigators and investigators in both civil and criminal matters have begun to focus carefully on electronic discovery and the role of computer forensics — the science of reliably recovering and handling electronic storage media and the data contained therein so as to provide the appropriate foundations for admissible evidence.
This is why you need a well documented and proven methodology, including embedded quality control, auditing and a fully documented chain of custody.
Johannes C. Scholtes
Chief Strategy Officer
ZyLAB North America LLC