Since the advent of the December 2006 Federal Rules of Civil Procedure Amendments, litigators have been pressured with managing the increasing exponential growth of their clients’ electronically stored information (ESI) and continuously look toward technology to reduce costs and streamline traditional discovery practices. In addition, recent judicial decisions supporting technology-assisted review (TAR) have expedited the desire among law firms to apply technology more than ever. As much as technology potentially could replace many traditional legal responsibilities, human intervention, however, is still the key to success. Therefore, experienced project managers are in demand in this truly technological world of 21st century litigation.
Unfortunately, what is often prevalent throughout the legal industry in decision-making for either hiring of litigation support professionals or vendor selection is that the technology listed on a candidate’s resume or promoted on a vendor’s website seems to be the primary consideration for law firms and corporate legal departments. The human experience and acquired skills that program and guide the software to process ESI can sometimes be a secondary consideration and even overlooked. Hands-on experience managing ESI for a wide range of litigation practice areas and intimate technical knowledge of litigation support systems and applications among several other important attributes are the most significant criteria to look for with respect to hiring a prospective professional staff member or when partnering with a vendor.
Nowadays, more e-discovery service providers in the marketplace are adopting a tool agnostic approach to processing and hosting ESI. Their investment in an array of solutions offers clients flexibility to match specific platforms to unique case requirements while providing options to stay within client budgets. Coincidentally, law firms and corporate legal departments tend to agree on and favor the handful of battle-tested products that generally make up the most popular and current commercially available solutions. No matter what software is selected, a system or application cannot function without human guidance. Technology only yields accurate results when managed by a project manager who has previous ESI project-management experience, solid cross-organizational knowledge and communication skills, high technical acumen, understanding of all products and services, creativity and even context to the general legal strategies being deployed. These attributes allow an experienced litigation support practitioner to utilize the features and functions of the technology to tackle workflow challenges and support custom client requests.
Seasoned project managers understand the strengths, limitations and the very backbone of their systems and applications that allows them to succeed with their responsibilities and, in turn, deliver tremendous client satisfaction. While their roles require them to delegate tasks to technical staff, experienced project managers always oversee the technical process with much attention to detail by applying their practical experience to establish quality control measures to troubleshoot for any inconsistencies or potential errors resulting in the processed data. Here are several examples demonstrating experienced project management during different stages of discovery:
Consider media intake. Upon receipt of collected data, an experienced project manager might generate a map of the media’s directory structure and for additional analysis, create a manifest listing file types and file frequency before sending data off to processing. For example, when considering a pre-processing review of desktop data collected from a custodian’s workstation, .DBX or .OST files identified could be red-flagged to be converted to .PST format for processing with the server email. Before processing, metadata preservation could be validated. In addition, any proprietary or unique file types that require special attention could be noted, including the compilation of a client-approved "files-to-be-removed list" along with subscribed system file suppression and other automated culling procedures.
Metrics are essential tools for e-discovery project managers to evaluate the filtering process before any data is approved for review or to make adjustments to workflow specifications during the processing phase. In one recent case, a client had an extremely strict budget for processing. By keeping a vigilant eye on the culling results, the assigned project manager noticed that most of the email that was filtered was not meeting the date restriction. Therefore, it was suggested to the client that the "advanced search/find" feature in Outlook could be utilized to search the PSTs for date relevance before processing. As a result of the project manager’s prescription for a relativity low-tech solution, a majority of the PSTs collected were identified to contain irrelevant dates and were not submitted for processing. Therefore, the overall project costs were reduced tremendously while the project manager’s creativity strengthened the client/vendor trust and therefore, solidified the relationship even more.
Search term hit reports are practical methods to evaluate the effectiveness of search terms. An in-depth analysis of search-term results by going as far as examining search hits by "file type" could help identify false positives as operating system files could contain a search term in the file name. In addition, early case assessment software and other tools allow for useful testing of search terms and analysis of results.
Often, a client’s case requirements demand specific features or functions to be added to support their workflow, document review protocol, or post-production phases. In many instances, clients do not want to pay for the adjustments they seek or developers cannot add the desired adjustments to the review platform for the timeframe of the review. An experienced project manager, however, could step in and think outside of the box to solve the workflow problem by using his or her expertise with the existing functionality of the database to create a customized workflow to meet the client’s needs.
During one review, a client requested Bates ranges for multiple productions to five investigating government agencies to be displayed and searchable within an online review platform that was designed only to represent one set of production numbers. The project manager was able to overcome this challenge by creating two fields in the coding form to display the agency with which each document was produced and the Bates range per document. As a result, production status and/or Bates numbers per document could be incorporated into the tool’s searching functionality and available on a document level.
The quality control implemented by experienced project managers is essential during all stages of the production process. There is usually no time to correct errors once a production volume is complete without compromising a deadline. Therefore, monitoring each stage of finalizing documents for production is essential. For instance, during a native document online review, an experienced project manager would quantify that the correct number of documents tagged for production in the database are formatted to TIFF images while making sure no nonresponsive or privileged documents were inadvertently produced. The same vigilance would be applied to verify that the exact number of documents is exported for post-TIFF processing, such as accounting in the production volume for all placeholders for files that could not be processed or other special aspects of the workflow. Other proactive quality control measures could include reviewing the endorsement file before but not after branding thousands and thousands of images. For example, the number of confidential designations could be double-checked to make sure what is being produced equals the amount tagged in the review platform, including the placement and spelling of headers, footers, Bates prefix, starting number, and even if this process is automated, number of digits, etc. It’s essential to make sure all redacted or placeholder documents are produced with the proper text (i.e., OCR) and not the original extracted text.
As technology continues to keep pace with the exponential growth of ESI, the future of e-discovery project management is bright since automated litigation support solutions will always require human guidance. Selecting the most appropriate technology is only part of the solution. To steer today’s ESI systems and applications to plow through the mountains of data accurately, quickly and cost-effectively requires experienced project management. That is, project management expertise that relies on years of experience managing a wide range of litigation matters combined with technical skills and knowledge, and an aptitude that can keep pace with the ever-changing technological innovations and developments not only within the legal industry but in today’s world. •
Andy Mower is a senior e-discovery consultant at DTI’s Philadelphia office who has more than 15 years of industry experience that includes working for an international Am Law 100 firm and successfully managing discovery from preservation through production. He can be reached at email@example.com.