Brett Burney
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Lawyers are not "project managers" -- they're lawyers.
That's not to say that lawyers don't juggle a thousand tasks every day, diligently supervise the folks that support their practice, or carefully manage a diverse portfolio of clients. Indeed, project management is part of doing business as a lawyer, but it is curiously not part of most law school curriculums.
E-discovery, however, throws a curveball at the intellectually routine practice of law. And evidence shows that lawyers are not prepared or not willing to manage the granular tasks necessary to supervise a successful e-discovery project.
Lawyers are trained to analyze and strategize -- not to categorize, prioritize, and quantify. Categorizing and prioritizing tasks and goals and quantifying results are absolutely critical to the success of any e-discovery project, but are considered beneath the ken of practicing law by many lawyers. So how should e-discovery tasks be managed, and who should be responsible?
Lawyers should look to forms of management that have been tested and proved successful, such as project management.
LEGAL PROJECT MANAGEMENT VS. E-DISCOVERY PROJECT MANAGEMENT
The discipline of project management is novel to the practice of law, but it's not a new concept. Project management has thrived in complex environments such as construction and software development. But the practice of law isn't supposed to be something that can stripped down to a "process" like you would find in building a house or developing a program. In fact, the very notion disgusts just about any classically trained lawyer.
"[Lawyers have a] distaste for procedure, systematization, methodology, and routine," observes Jordan Furlong on his Law21 blog. "For most lawyers, ... process is a dirty word. We prize raw intelligence over plodding procedure."
"At some level, we take offense at the idea of project management because it seems to reduce this wonderful profession of ours to little more than a series of steps, a collection of flow charts, that anyone could follow," continues Furlong.
But compare that perception to the example of pre-flight checklists in "The Checklist Manifesto," a book referenced by e-discovery authority Browning Marean. A pre-flight checklist isn't meant to be used by just anyone -- it must be interpreted and utilized by an experienced pilot. The pre-flight checklist is worthless without the requisite experience.
Legal project management has focused on the mechanics of the practice of law, and not the practice of law per se. Steven Levy, author of "Legal Project Management: Control Costs, Meet Schedules, Manage Risks, and Maintain Sanity," states that the four objectives of legal project management are: 1) clarified goals, 2) lowered risk, 3) cost control, and 4) timely delivery of value. And while those objectives can be applied in any practice concentration, it seems to resonate most strongly in litigation.
Legal project management can be a useful tool for presiding over a repertoire of litigation matters, but the management of tasks involved in electronic discovery benefits more from the traditional discipline of project management.
As Steven Levy comments, "[E-discovery project managers] are managing not the evaluation of the content, which is of course a matter of law, but the workflow of collecting, storing, encoding, tracking, and producing thousands or millions of documents. That's a matter of project management."
George Socha and Tom Gelbmann recognized the application of project management principles to e-discovery in their 2009 E-Discovery Survey as a means to "minimize missteps and deliver more predictable, reliable, and cost-effective results." In their 2010 survey, Socha and Gelbmann reported that respondents were still searching for qualified, experienced "superstar" project managers.
The Cowen Group, a staffing agency that focuses on litigation support and e-discovery, reported in 2010 that "project managers will gain greater prominence in the industry due to the increasing size of data sets and heightened concern around controlling cost, limiting risks, and guaranteeing outcomes."
Lastly, both Clearwell and The Posse List predicted in their 2010 E-Discovery Predictions that project management would become increasingly important to ensure that e-discovery processes are "repeatable, measurable, and defensible."
A BEGINNING AND END
The Project Management Institute defines project management as "the application of knowledge, skill, tools, and techniques to project activities to meet project requirements."
That's quite a mouthful, but the definition finds its fruition in the ability to break down large, complex projects into manageable tasks.
A chief characteristic of a project is that it has a definite beginning and end. Consider that in contrast to a "process" which has no end, and describes a set of tasks that can be consistently reproduced to achieve the same product or service.
One could argue that project management in litigation is better described as "process management" since most matters rarely have a definable beginning and end (due to appeals and other procedural activities).
It's difficult to define a specific beginning and end to a litigation matter, which seems to undermine the entire applicability of a project management schema to the tasks involved with e-discovery. But the nitty-gritty of e-discovery is actually a series of established tasks and chores that have start and finish times, although the tasks regularly need to be repeated. Once a task is completed, that doesn't mean that it won't be necessary to redo the work based on new information gathered, or data that is reviewed.
E-discovery is, after all, completely dependent on the larger litigation matter. We don't engage in e-discovery for the sake of e-discovery. E-discovery exists only to support litigation goals. If the goals of the litigation matter change, then the e-discovery tasks must be modified to support that goal, which means some tasks may never seem complete.
Another major characteristic of traditional project management is a "deliverable" at the completion of the project -- a tangible indication that the project is "done." But what does "done" look like in a litigation matter? Is it when you win the case? What about the appeals process? What does "done" look like in an e-discovery project?
If you can't define an end to the project, it's impossible to say that it's "done." The major hurdle for e-discovery is that even when a task is "done," there is a good chance that it may need to be repeated or iterated with different parameters. In that case, each iteration of a task has a definable "done" with the caveat that it may need to be redone.
For example, the goal of data collection is to verifiably collect every single relevant file to review. Once every file is collected, the task should be "done." But collection is usually an iterative process as the strategic goals of the case change, and additional requests come in from opposing counsel.
When I asked Steven Levy, he commented that defining "done" is a major step in effectively managing any project. "If 'done' is 'let's churn through every single document to give it the most detailed review possible,' then project management is really housekeeping -- setting dates, identifying resources, making sure documents and reviewers and systems are available when needed in requisite quantity."
HOUSEKEEPING
Indeed, project management can be housekeeping. And as every good housekeeper knows, jobs or projects have three main constraints that demand constant attention: time, cost, and scope. The constraints are usually visualized in a triangle. When applied to e-discovery, these constraints translate to client requirements: fast, cheap, and good.
The problem is, you can never have all three at the same time -- you only get to pick two. You can have the job done well and fast, but it's going to cost you. You can have the job done quickly and cheaply, but it may not be as accurate or detailed as you require. It all depends on how the lawyers adhere to client requirements and apply a legal strategy to accomplish client goals.
When it comes down to adhering to two of the three project constraints, you will need to consider your client and litigation goals and all project criteria, including resources. So be sure you have an experienced housekeeper or project manager at the helm and that he or she has the right tools to manage the e-discovery process.
In the second part of this article, I will delve into the qualifications of an e-discovery project manager and the processes and tools to consider in managing an e-discovery project.
Brett Burney is principal of Burney Consultants, based in Cleveland, and a regular contributor to Law Technology News. E-mail: burney@burneyconsultants.com.
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Mike Quartararo
Well said. I'm looking forward to part 2 of this article. With respect to the question regarding "done" in the context of an e-discovery project, I think that we can say we are done when you've passed through the phases of the EDRM defensibly, reasonably and hopefully without too much difficulty -- understanding of course that litigation can go on for years and you may have to revisit the project in the future.
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