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In the world of electronic discovery, it’s essential that people remain involved in the process, no matter how sophisticated the new forms of technology for gathering and organizing information have become. Today, cases can be won or lost in the electronic discovery phase of litigation. In fact, in the recent Morgan Stanley case, damages exceeded $1 billion because of a botched electronic discovery project. Although much attention has been given to the ways technology can solve many harvesting issues associated with electronic documents and can reduce the need for costly human review of documents, we still need to remember that the involvement of intelligent participants can make the discovery process flow as smoothly as possible. In fact, in-house legal departments, law firms, and their legal staffing agencies should consider applying project-management techniques to electronic discovery projects. Of course, over the past few years, some interesting technologies have improved the ability to review documents with computers, such as native-language reviews, concept-mapping technologies, visual e-mail analytics, and linguistic pattern matching. To date, however, no courts have formally approved any of these techniques. Unless judges and all parties agree to rely on an electronic harvesting solution, it is dangerous to rely solely on these tools. Legal professionals are still an important element of the document review. In addition, certain discovery subjects, such as the correspondence of key witnesses, managers, and executives, simply must be reviewed directly. There are privilege issues, privacy issues, proprietary concerns, and other reasons beyond quality concerns that make complete elimination of human review unlikely. For instance, it’s hard to get machines to figure out when a person’s privacy is being impinged upon. In addition, matching a vendor’s technology to a company’s often unique older databases in order to filter information often presents problems. Kevin Esposito, director of electronic discovery at Pfizer Inc. in New York, says he spends a significant amount of time trying to find the best technology for specific issues in electronic document productions. There is no single “silver bullet” solution to document-review headaches. Tim Opsitnick, senior partner and general counsel of Jurinnov, a Cleveland-based electronic discovery consulting company, says, “Even if software tools become accepted and validated to cut down on the amount of document review required, the human aspect of electronic document review that includes a review for responsiveness, trade secrets, and privilege will remain the most costly aspect of electronic discovery.” So while some promising technologies are being developed that will eventually cut the costs of discovery, we still need organizations that can develop project management strategies to manage electronic discovery. Project management, in fact, is a critical step in making these projects more successful. STAFFING One of the first steps is deciding who will staff the discovery project. According to many law firms that regularly represent clients in cases involving significant discovery matters, a mix of law firm personnel and contract, or contingent, lawyers and paralegals is the best approach. Relying entirely on law firm associates and paralegals to staff a discovery project is not necessarily in either the firm’s or the client’s best interests. A document-intensive electronic discovery project offers few opportunities for career-minded law firm personnel to be recognized, particularly as discovery in some large matters may continue for years. That’s why a mix of contract attorneys and paralegals who only focus on discovery, combined with law firm personnel who can manage the overall production, presents a perfect solution. The result is overall cost reduction to the client, better law firm morale, and more efficiency in completing the project. According to Richard Dandrea, chair of the mass tort practice group at Pittsburgh-based Eckert Seamans, “Contract attorneys who have proven themselves and are properly managed by outside counsel are critical components of teams tackling large e-discovery projects.” THE MANAGER Another important step is the use of a project manager and the establishment of a process to manage the “production line” aspect of these cases. Many project managers have strong technology backgrounds and some familiarity with manufacturing processes, or they have worked on a number of electronic discovery projects. Some are not attorneys or paralegals but have backgrounds in project management, library sciences, or electronic discovery and are willing to learn how to manage these matters. Esposito says, “Law firms seeking to improve their services should be more focused on the technical and project management skills of the person that they put in charge of their electronic discovery matters. They need to give this important decision the attention it deserves.” He adds: “Managing electronic discovery work is not as simple and straightforward as some firms think it is. The approach needs to change along with the subject matter. For example, an attorney who has led an automotive product liability case may not necessarily be the ideal project manager for a pharmaceutical case, because they might not be in tune with relevant issues in the case and within the industry.” A key, according to Esposito, is for the project-managing attorney “not to be too focused on one area and lose sight of the overall needs of the project.” Jim Michalowicz, litigation program manager at Tyco, agrees: “There needs to be an evolution by law firms into adopting a project management approach.” Once the staffing decisions have been made, a project management approach can be broken into three phases: communication, implementation, and re-communication. PLANNING AND COMMUNICATION The planning and communication phase is essential. The firm and client need to sit down at the beginning of the project. According to Jim Daley, a partner in charge of electronic discovery at Shook, Hardy, and Bacon, “These projects are so complex that they require an effective road map at the beginning of a project and pulling together the best resources available to staff the project as a flexible team.” On the staffing side, these meetings can be used to establish the type of coding, quality-control measures, the level of productivity expected from reviewers, and a budget with billing rates for the law firm staff and contingent staff. Thought should be given at this time to the number of reviewers needed to accomplish the project within the time period available. Other topics that should be discussed include the preferred hours of operation for the coding team, as well as whether overtime should be incurred, and whether reward systems are going to be used as motivational tools for the reviewers. In addition, planners should broadly map out the entire collection phase and the goals of the case. They should set forth a project management template capturing this information. At agreed-upon intervals, the project manager and key members of the team should discuss whether the project is on track or going off-track. IMPLEMENTATION Next is the implementation phase. An optimal project starts out with strong training. According to Dandrea, “The education of a reviewing team at the beginning of a project is one of the most critical aspects to starting a project off on the right path.” Groups undertaking coding projects should understand that there will likely be poor performers on any coding project of size and that they are to be identified, coached, or managed off the project as quickly as possible. In my experience, if poor performers are not dealt with quickly, the rest of the team become aware of the problem, resulting in morale issues and concern that their work is not valued enough. Conversely, determining a reward system to motivate stars to perform can be very effective. These rewards can include promotions to quality-assurance teams, key coding assignments, or special assignments such as deposition preparation. Cash awards and recognition of individual and team productivity also work well. In the optimal project, reviewers work at reasonable paces, generally not exceeding 50 to 55 hours a week unless there is an impending deadline. When there are deadlines, it is OK to let the workweek hit 70 hours if necessary. RE-COMMUNICATION And then finally we have what I call the re-communication phase. The client is given updates based on the agreed-upon budget and productivity assumptions that were made at the beginning of the project. An assessment should be done of the risks of falling behind schedule and whether the project requires more time, resources, or a scaling back of the original objectives. Reviewers are rewarded for hitting certain milestones in a framework the project manager has helped to outline. Michalowicz adds that as vendors improve their project management, “it is imperative that their outside counsel and vendors provide tools to measure performance and assist to get projects achieved within established benchmarks.” Lawyers skeptical of the need to use formal production management techniques in large discovery cases can see how well they work in fields such as engineering, information technology, software design, architecture, construction, and accounting. Electronic discovery has put new pressures on the legal field — perhaps like no other force affecting the legal industry. Both companies and law firms are looking for the best methods for electronic discovery projects. The recent spate of headline-generating decisions only further highlights the need for the legal industry to continue working on developing effective processes. In the rush to select technologies, law firms and their clients must not ignore the need to devote adequate attention to the management of the “human equation” of e-discovery.
Karl Schieneman is vice president of Special Counsel, a legal staffing company with offices in 35 cities. In 2004 he was named the Ernst & Young Entrepreneur of the Year.

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