“Increase efficiency, reduce costs and mitigate risks” is the mantra that reverberates throughout the general counsel’s office at most companies. This is especially true for the world of electronic information given the sky-rocketing costs and ever-increasing risks associated with managing such information in litigation (preservation and evidentiary issues) and out of litigation (records retention, updating organizational charts and tracking electronic devices).
While there have been a number of technological changes such as cloud computing, which has been called the “wave of the foreseeable future for enterprise computing,” there is an “old-fashioned,” non-technological approach that is gathering momentum in the business world.
This other approach—e-discovery project management (EDPM)—is viewed as a possible way for companies to offset the heightened pressures to cut costs and increase efficiencies. EDPM can proactively manage electronic information in litigation involving the application of knowledge, skills, tools and techniques to achieve certain objectives or goals. So while outside counsel and their law firms have been slow to embrace that concept, they may want to consider it as a New Year’s resolution for 2012.
While technology may be seen as the panacea, it is the last item companies should consider when they are facing challenges with e-discovery. The key for success is the process not the technology.
For example, if a company wants a defensible records retention/preservation process or protocol, it must create one in a collaborative fashion and then have it vetted, revised, implemented, audited for compliance and effectiveness and then reviewed again. Even then, the process is not bullet-proof because of the “human touch.” Whenever a process allows for human discretion or intervention, there is the possibility of a failure of the process. However, if the company implements and follows such a process, the case law has shown that the chances for severe sanctions for negligent behavior or oversight mistakes have been greatly reduced.
How do you create a defensible “process” in the e-discovery process? Business leaders know how because they use effective project management to create defensible processes while simultaneously increasing efficiency and reducing costs. E-discovery is over 95 percent process-oriented and it requires significant oversight. The resources required to perform the tasks, including the technology are dynamic and numerous. Additionally, one of the fundamental tenets of a defensible process is the process of documentation. So why isn’t this approach used for litigation and in particular e-discovery? It can and it is a hot topic for those law firms whose clients and their inside counsel are expecting their outside counsel to partner with them to reduce costs and increase efficiencies.
Putting EPDM to use
While EPDM’s “who, what, when, where and why” approach may sound simple, in reality it can be very complicated. In particular, it is very important to know the stakeholders and their goals.
Based upon the experiences so far, there are a number of reasons e-discovery projects fail:
- Undefined roles and responsibilities
- A lack of commitment to get items done on time
- A lack of contingency planning or prioritization of critical requests
- A lack of creative thinking in terms of problem solving and dealing with technology
However, these reasons are not deal-breakers if there is proper planning and execution of the EDPM plan.
From the outset, counsel should have a clear understanding of the broad range of stakeholders in the litigation—in-house counsel, outside counsel, the in-house business client (which could be multiple individuals) opposing counsel, outside vendors, consultants and even the court. What are their expectations and how do you manage them?
It also is important to rank the stakeholders in terms of both interest in the litigation and power so prioritization protocols can be implemented. The next step is defining the objectives or goals of each of those stakeholders. What does success or winning look like for each stakeholder? Indeed, many times the goals or objectives can be in conflict. Finally, what is the scope of each project and what pitfalls/problems should be considered?
Preparation and planning are mainstays of corporate functions. While e-discovery has created havoc with those internal corporate functions, there are solutions, and EDPM is one that should be given strong consideration.