David J. Kearney

May 17, 2013

e-Discovery IN, e-Discovery OUT, or Somewhere IN-BETWEEN…

Filed under: e-Discovery,Litigation Support,Management,Project Management,Technology — David J. Kearney @ 2:12 pm

e-Discovery IN, e-Discovery OUT, or Somewhere IN-BETWEEN…

 With the exponential increase in ESI collection sizes, the rapid changes in technology, the high expense of qualified personnel, and smaller firms with very conservative case budgets and perhaps limited resources in the area of e-Discovery, all but the largest of firms need to seriously consider a myriad of options when bringing e-Discovery processes in-house or outsourcing the function or designing a hybrid model. There is plenty of banter between highly regarded e-Discovery practitioners, including those from law firms as well as those within service providers arguing which approach is best.  There is no one-size-fits-all approach.  Firms need to take an individualized approach when designing e-Discovery processes, workflow, and technology solutions 

Organizations need to face the possibility that they will be more closely examined & scrutinized on how their data management practices and e-Discovery processes and procedures are designed and followed.  With many options available, now is the time to examine or re-examine how things are currently being done.

Most of us have seen either fits and starts, or the back-and-forth between outsourcing certain services and business processes within law firms, however, deciding on an e-Discovery model is not an easy one to make. Many factors need to be considered and areas understood before committing to any one departmental business model.  You must understand where you are and what make sense for you and your firm.

Thinking along the lines of a business plan may be a very good starting point that includes projections, expectations, risk management, profit/loss/break-even, scheduling, capacity handling, workflow, and personnel.  E-Discovery and aspects of Litigation Support is a business process and should be managed, operated, and supported as one. 

 Culture

Culture has a lot to do with how a firm operates…from a management, to a support, to an operational perspective, to what the firm decides to focus its resources on, such as technology spend, people spend, and other investments.  Any kind of organizational change will bring some levels of discomfort, so knowing the culture will help determine the direction and who in the firm’s leadership might provide internal guidance and support.

Regardless of approach, firms need to establish or re-establish a foundation as to how they will handle and manage e-Discovery and, to a greater extent, support litigation.  Litigation Support/e-Discovery needs are not “run of the mill”…the technology is different, the requirements are non-standard, and the urgency is heightened over most other practices.  As you proceed with an analysis of e-Discovery models, you may want to include the following questions:

  • Will the firm culture support the commitment needed to build, run, and manage an e-Discovery/Litigation Support organization in-house?
  • Is the firm in a position to invest significantly in an area that is not a core competency?
  • How will the firm tolerate the learning curve and operational shift that will inevitably be encountered when building an internal department or outsourcing the function?
  • Is there commitment from firm management, practice groups, and information technology (especially when building the technology infrastructure in-house)?

 Organizational Maturity

If the firm is mature, there is probably a well-defined understanding of technology, people, and overall processes related to the aspects of supporting litigation.  If not, the process to determine a more focused strategy might help, including how services are delivered and sustained.

An example to consider when evaluating an e-Discovery strategy is that there are times when additional help is needed by using additional technology, more personnel, or outsourcing the entire project to a 3rd party that has the bandwidth to handle the complexities.  Sometimes due to a lack of understanding projects must be or are forced to be managed in-house with limited resources to the detriment of the client, firm, and case.  Consider the following questions when analyzing the overall firm’s maturity regarding e-Discovery: 

  • Are there documented intake procedures?
  • Is there a size limit, monetary value, or deadline threshold that dictates when and how an e-Discovery project is handled?
  • Is data chain of custody documented?
  • Is evidence physically secured?
  • Is having an in-house e-Discovery service a strategic advantage to the firm or section?
  • Are the services provided value added, break-even, or profit driven?

 Value added e-Discovery services may not be sustainable in the long term due to the internal costs that are absorbed.  A profit driven model may become a detriment because a firm may not be able to be truly competitive with service providers.

Technology

Providing e-Discovery/Litigation Support services typically requires a significant investment over and above typical technology infrastructure.  Often times, bandwidth, desktop PCs, servers, and processing devices have greater specifications than might be typical for an organization’s IT department & user-base.  Frequently, software needs include review, processing, and culling tools.  Litigation discovery data can increase exponentially, without too much advanced warning, so scalability also needs to be part of the infrastructure plan

Many technology departments are already operating lean, so having a technology team/I.T. Department responsible for handling the demands of litigation and all of the moving parts may be very difficult.  Analyze the technology aspects of an e-Discovery model by asking the following:

  • What kind of technical infrastructure will the firm support?
  • Is the current network bandwidth sufficient to handle the network traffic between locations?
  • Is the solution scalable?
  • How scalable is the software?
  • What software application(s) will the firm support?
  • Is the software under regular development to include the latest bug fixes and technological advancements?
  • Does the software developer have the infrastructure to handle support requests, code changes/feature requests, and consulting?
  • Data sizes explode without warning, so is there a plan to expeditiously handle the needs?
  • What tools are needed for the firm’s common cases, such as processing, culling, clustering, and technology assisted review?

 Disk space, servers, backup technology, disaster recovery locations also need to support the amount of data that you may house.  The technology infrastructure costs to support a robust application suite and usage demands requires a significant monetary investment.

 

 Data Security

If non-firm personnel need access to the case data (co-counsel, experts, contract attorneys), you can certainly export the data, databases, images, etc. for the 3rd parties to import into their platform, but in this instance, there would be various versions of the data making it nearly impossible to keep the various versions of the data synchronized.  So, it certainly makes sense (assuming this is agreed to by all parties) to give outside organizations access to the same data.  Many applications do have the ability to granularly assign levels of security so only data that you want certain parties to view or edit can be assigned.

If data is hosted in-house on a platform that can be accessed by external sources:

  • Does your firm have sufficient security protocols in place to ensure that data is secure? 
  • Is the data secured among other different case related data? 
  • Is the security protocol documented?  Can it withstand an audit?  Can it withstand an attempted security event?

 People

As it has been said, good people are the heart of any great organization.  If a firm is considering building some level of expertise in-house, the following questions need to thoroughly vetted with regards to the proper needs assessment, acquisition, selection, on-boarding, and retention of personnel. 

  • What positions within the firm will be designated for Litigation Support/e Discovery?
  • What department will the position(s) report? IT, Litigation, Practice Support, KM, etc.?
  • How many personnel are needed?
  • What is the skill set, education, & experience required?
  • What is the compensation of the position(s)?
  • Does the environment support the salaries needed to keep qualified personnel interested, engaged, and dedicated?
  • Does anyone currently on staff, such as paralegals, have the required skills to transition to an e-Discovery, more technical, role?
  • Will the position(s) have a backup to accommodate vacations and peak workloads?
  • Will the position(s) be able to manage the workflow with vendors due to technical complexity, volume, or extremely tight deadlines?
  • Is there anyone willing at the senior management level to support the e- Discovery position(s)?
  • How will non-business hours support be addressed? 
  • How will PTO/vacation coverage be addressed?
  • How will quality control be handled (1 person can’t effectively Q.C. their own work)?
  • Is there a defined Service Level Agreement?

 Workflow and Process:

The following are workflow components that need to be thought through and decided upon:

Intake – Does the litigation and litigation support team know the details of an incoming case?  New matter tracking and alerts based on certain thresholds can be very helpful, such as value of case, amount of discovery anticipated, type of case, what attorneys/partners have been assigned to the case…originating attorney, etc.

Consulting – What consulting is available, internal or external, with regards to best practices & approaches to preservation, collection, pre-culling, processing, review and production?  Who it is done by?

Solution Evaluation & Implementation – How are various solutions evaluated for each matter/case?  How are they weighted?  Is it the vendor that brings you candy bars?

Project Management – Are there standard PM practices in place?  How are projects initiated, planned, executed, monitored & controlled, and finally closed.  Is all project knowledge managed in a silo?  Is this knowledge/lessons learned held tightly with one individual?  Using only one common project management framework isn’t necessarily the answer, but adopting a project management toolkit that captures the project life cycle is always a good approach

Tracking of Requests – Are requests tracked to import data, produce documents, burn CDs, alter the database schema, endorse discovery data?   Or, is it just walking down the hall and giving a disk to an individual and saying “deal with this”.  Tracking of requests are also a very good way to document Chain of Custody.

Tracking of Discovery – Is there a protocol as to what happens with discovery when received and when it is handled?  Where does it go?

Quality Control – Are there Quality Control practices in place and a way to address any errors, whether it be for image conversion or inaccessible documents (legacy, password protected, proprietary), etc.

Productions – Although litigation sometimes happens quicker than the speed of light, does your organization have the manpower and production capabilities to handle aggressive deadlines?

Archival, Closure, Destruction – Is there a closure process implemented when a case settles, a practice to archival case data for future use, a practice to destroy or return data to the client?  If you are a law firm are you following the data remediation/retention policies of you client with regards to the discovery in your possession? 

Ultimately, the firm needs to be protected by implementing repeatable and sound processes.  Firms may not be equipped, or even interested, in designing and supporting a robust platform that is needed for maintaining internal resources for parts or all of the components of the e-Discovery process.

In some instances it may make a lot of sense to outsource the entire technology infrastructure and services needed to support applications, servers, backups, software and hardware upgrades, storage space management, processing and hosting data, case consulting, and 24 X 7 X 365 availability and support.  In other instances it may make sense to only outsource some components of the e-Discovery process. 

All firms that practice litigation must have some sort of organization around handling e-Discovery. Software alone or a reactive plan will not position the firm to respond rapidly, consistently, or effectively to firm and case needs.

There is no perfect solution, either internally or outsourced, so keep in mind that no one solution is going to be a panacea over the other, but it is how the design of the solution is modeled and maintained that will make or break the initiative.

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