eDiscovery Management, Part 1: Setting up Legal Teams for Success

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Robert Half Legal Report: eDiscovery Management, Part 1: Setting up Legal Teams for Success – 6/15/2015

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Charles Volkert: Hello everyone and welcome. I’m Charles Volkert, executive director of Robert Half Legal, and the host of our two-part program on ediscovery management. As the amount of electronic data continues to proliferate, managing ediscovery is increasingly challenging for law firms and corporate legal departments. And it’s unlikely to get any easier in the years ahead. Joining me today to discuss these trends and share best practices are my colleagues, Frank Serge, and Sunny Sanghani. Frank Serge is vice president for Robert Half Legal’s consulting solutions and ediscovery practice where he provides consultation and support to law firms and corporate legal departments to create operational efficiencies, mitigate risks, reduce costs, and design customized ediscovery solutions. He serves as a business partner to multiple Fortune 1000 companies and AmLaw firms in the Chicago area and internationally. Sunny Sanghani is associate director of legal projects for Robert Half Legal’s consulting services in ediscovery practices. He provides investigative support and solutions to clients in the areas of documentation gathering and review, evidence and electronic discovery management. Welcome to both Frank and Sunny, it’s great to have you with us today.

Frank Serge: Thank you Chad.

Sunny Sanghani: Thanks, Chad.

Charles Volkert: So Frank, let’s start our discussion by talking about some of the basics for ediscovery management. Namely, how to establish effective document reviews. What do law firms and legal departments need to be most concerned about when it comes to managing ediscovery?

Frank Serge: Thank you Chad. I think it’s more important than ever for attorneys and paralegals to become well-versed in ediscovery. In a recent LawSites law blog post, Bob Ambrogi noted that 13 states have adopted an ethical duty of technology competence. For example, in California, this would require attorneys who represent clients in litigation either to be competent in ediscovery, or associate with others who are competent. Also having the right mix of expertise and resources available is essential to effectively managing ediscovery matters. Corporations and their outside counsel are responding to increased pressure to revamp their programs and procedures to more effectively manage ediscovery engagements and establish defensible processes. This includes identifying internal capacity and capabilities and where appropriate, strategically supplementing expertise or existing expertise. If you decide you need to augment in-house knowledge with experienced 3rd party ediscovery specialists, then you need to make sure your outside provider can deliver effective solutions that offer simplicity, cost-effectiveness compliance with both internal and external requirements, defensibility, predictability and transparency. And in particular, make sure that you enable document reviews to become ingrained

Charles Volkert: Great points Frank. Sunny, any other areas of concern that you might have or things to share with the audience?

Sunny Sanghani: Yeah, Chad. Another area of concern is frequency and how often firms have repeated the process. Many attorneys experience large gaps of time in between ediscovery matters and the technology changes quite a bit during this gap. So staying up to date on that is imperative.

Charles Volkert: As it applies to technology, Sunny, what are some of the trends you’re seeing when it comes to ediscovery tools? What are the benefits and pitfalls of using these tools?

Sunny Sanghani: Great questions, Chad. Let me start with what I’ve actually been noticing in the marketplace. I’ve seen an increased around tools and processes using visual analytics, connected devices and predictive coding. Based on my experience, appropriate uses and consideration of these items are useful to consider when facilitating the ediscovery process. Now knowing the technology’s good, but really knowing the process of how to use them can offer competitive advantage and provide legal managers several gains and operational effectiveness. But in truth, at the same time, many of these things begin to introduce new challenges along the way. Predictive coding, for example, is a super powerful tool that could be applied to a sizeable dataset. But it also has potential pitfalls. Pressure from all sides, discussed training criteria without actually revealing the case strategies behind it, incorporation of new data after initial seeding, the reliance on OCR and the impact of inadequate or improper processing techniques, and then of course the appropriate use of quality control to validate and move forward with the decisions being made.

Charles Volkert: Excellent, Sunny, thank you. Any additional points that you would add, Frank?

Frank Serge: Yeah, I would also add that  predictive coding can dramatically reduce the cost and time required for ediscovery while enhancing the effectiveness of searches. But it’s just one of many technologies assisted resources that are available. In this industry that is ever evolving, it’s critical to keep watch for new developments and particularly how those technologies are deployed, managed, and reacted to by the courts.

Charles Volkert: So great information from both of you. I guess if you look and take it a step further, based on the work that you’ve done over the years in particular, Sunny, on the consulting side, what do law firms tend to ignore or overlook when it comes to managing ediscovery?

Sunny Sanghani: There’s a few things I’ve noticed, but if I take it to the overarching theme, what I’ve seen is mostly that firms aren’t understanding ediscovery as a process and actually acting like it’s just another one-up project. In a process, you get the benefits of consistency, definitions, templates, checkpoints, validations, everything needed to help ensure you have a solid work product. For one of the other big takeaways I’ve learned while working in this group is that when working with firms and many of the managing partners, they got to their positions by knowing how to manage people and how to manage relationships. Often the associates who are put in charge with doing the actual day to day management of a doc review, are more junior and often still developing their project management abilities and teamwork skills. Effective use of a managed service provider can actually mitigate the experienced delta that often leaves the client frustration, non billable hours and poor work product. All that said, though, if you break down what it actually takes to have a successful ediscovery engagement, I would say first appoint a strong project manager at the start of the engagement. That individual can be someone within the organization or from a third party project team. The main requirements are that he or she actually understands the legal intricacies of a case and has actually the project management skills needed to ensure results are delivered in a timely and cost effective manner. This individual also needs to have the ability to be focused on the big picture as well as the daily details. Second, you want to make sure you actually have defined the key roles and responsibilities for everyone. To avoid confusion and miscommunication, team leaders and law firms, corporations and members of third party teams need to establish defined roles and come to an early assessment of what those roles and responsibilities include. In addition to the team leader or the leaders, a project team might also include technology specialists, consultants, document reviewers, and additional project managers in various locations depending on the demands of the location. It’s essential to designate somebody to review and quality-check the team’s work along the whole path of the process. This is critical because when it falls to the law firm, the general counsel and project manager to make sure that everything’s going according to plan. And I’d say finally, making sure that there’s an established process and protocol. Once you delineate who will be handling which responsibility, establishing the processes and protocols for the members to understand why the team was formed, what the goals were and what needs to be done to achieve those goals is key. That meeting you have at the kickoff should include a discussion of the action plan, logistics, workflow and guidelines for exchanging information, making decisions, resolving conflicts and so-on.

Charles Volkert: And Frank I know you in particular spend so much time with the clients, client facing as they analyze these engagements and what to do. Any additional points that you’d bring to bear for our listeners as it relates to this question?

Frank Serge: Yeah, certainly I have a couple additional points to add. One, I think it’s important to communicate early and often. Keep communication active throughout the engagement, even if the procedures are clearly discussed at the outset. Project teams need ongoing guidance to function effectively. Deadlines often change and the scope of the project can also morph. So it’s important that team leaders continuously communicate updates, inform their colleagues about how their work may be affected or impacted. Also, keep the team upbeat and positive. It’s essential that the leaders keep everybody focused, motivated and ready to handle high-pressure work. Being able to anticipate and help, the team will overcome obstacles and identify next steps is crucial. Leaders also need to be the voice of reason, especially as engagements grow larger and more complex. And finally, I think it’s really important to recognize strong work ethic. Make sure that you’re applauding both individuals and team accomplishments over the course of an engagement. Although many of the initiatives may be brief in nature, others can continue for a long period of time. With this in mind, organizations that engage ediscovery and litigation consulting teams may want to consider their own ways to reward great work and keep project teams very engaged and motivated throughout the process.

Charles Volkert: Well that’s great information Frank and Sunny, really appreciate it. Now let’s take a quick break.

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Charles Volkert: Welcome back. I’m Chad Volkert and with us today are Sunny Sanghani and Frank Serge from Robert Half Legal’s Consulting Solutions and Ediscovery Practice. Frank, let’s regroup and talk a little bit about other key considerations when managing ediscovery, particularly document review. Working with information technology, the IT department, and outside vendors and maybe we can start by discussing some of the trends you’re seeing.

Frank Serge: Certainly, Chad. Obviously, the intersection of legal and IT has become an issue for in-house counsel as well as the law firms that support them. Increasingly, legal professionals are finding themselves working with IT specialists when it comes to ediscovery planning, document review and responding to requests due to the expertise required in those undertakings.

Charles Volkert: Good points, Frank. What are some of the best practices for corporate in-house legal or lawyers in a firm to work more effectively with their IT counterparts?

Frank Serge: First I think it’s important that they recognize how similar the two groups are. In training, knowledge skills, priorities, perspectives, and even in business vernacular. I think it’s important to establish common ground at the outset of a project. What is the collective team’s objective, its shared goals, required outcomes? From that point, team members approach work at hand following established collaboration techniques. For example, they can brainstorm, communicate appropriately, identifying capabilities, building consensus amongst the group, planning the projects and so on. I think it’s very important to involve IT early and often in the decision making and application, because this will go a long way to create an integrated and comprehensive solution amongst the group.

Charles Volkert: All great points. Sunny, anything to add here?

Sunny Sanghani: Yeah, so I think we drew upon this a little earlier, but roles and responsibilities are still key. IT is an extremely lean shop in most organizations, and in most cases, they will need some sort of help. A lot of times when I’m speaking to them, it’s all about making sure there’s a division of work there to mitigate the risk of being unable to re perform the same thing the same way. So that is one thing I have definitely noticed.

Charles Volkert: Great points, Sunny. I know we talked a little bit about this earlier, you both mentioned creating efficiencies. But maybe, Sunny, are there any proactive procedures that you would recommend to boost the efficiency and accuracy of ediscovery projects?

Sunny Sanghani: Most definitely, Chad. In many of the discussions that I have with clients about how to better prepare, I have them start by answering a few fundamental questions. First, usually, where is the data? Knowing where your data is and where it isn’t is very important. More often than not, a lot of the employees see their computers and they may see something as named one way but then when you actually talk to IT, it’s actually being stored on a completely different platform or server. And often, this leads to redundant instructions from the legal team to IT during preservation and collection. And after you know where it is, making sure it’s actually a record of the organization and it’s responsive to what’s actually being requested becomes the next step. Many times, it takes multiple data points to constitute a record or true picture of what’s being asked, and getting to that compilation can require some thought collaboration with IT along with the appropriate advisor. And then of course, considering your decommission systems and user equipments like phones, laptops, or tablets, crucial as well. Next, I usually ask how quickly can you get to the data. So making sure you have developed technical and functional procedure with your IT group and any outside providers is key. This should include how you’re going to notify them if you need information, how to get access to partnering data, and how to make sure it’s actually being safely stored in case you do need to preserve it. And then finally, when do you need to enlist help. To handle a large discovery request, an organization should first determine if it has the capacity and capabilities to work the document review in-house or if outside resources are going to be required. External providers can reduce cost of ediscovery by providing trained staff, facilities, equipment and expertise. Looking for an organization that offers managed ediscovery solutions that can be tailored to your firm or company’s need is vital.

Charles Volkert: All great points, Sunny, really good information. And so Frank, with that in mind, what advice do you have for choosing and working effectively with outside service providers?

Frank Serge: I think it’s important to canvas key stakeholders within your organization to identify your existing capacity and the specific skills that you may require from an external source, then evaluate service providers to determine if they have the expertise required as well as the project management style that’s suited for your company’s needs and specifically for that project. As you establish a document review team, you decide if an internal staff member has the capabilities and capacity to serve as a project manager. Someone who thoroughly understands the case at hand and possesses strong project management skills and needs to guide the team to deliver the stated project results on time and within budget. If not, work with a third party provider and identify a qualified resource. Next, I would establish confidentiality and data security safeguards by requiring any external reviewers involved to sign confidentiality agreements. If you have enlisted an outside provider to fully manage the document review engagement, you or a staff member should monitor the process. Checking in frequently with the provider and the review team on a regular basis. Monitoring can be accomplished through a variety of standard and customized reports. I think it’s also important to establish a metric-driven review workflow. I think there’s three keys to that. One, you want to segregate reviewers based on level and skillsets, segregate batches based on predetermined criteria to expedite the review and to drive quality. And then also address exceptions and special handling requirements effectively. Finally, I would say maintain an executive dashboard that enables identification, isolation, escalation and remediation of key issues relevant to that case.

Charles Volkert: Well thank you, Frank, that’s a very thorough list. I looks like we’ve reached the end of the program, and that was certainly a great discussion. Special thanks to Frank Serge and Sunny Sanghani for joining us today. Before we close, I want to let the audience know how they can contact each of you. Frank, could you provide your information for us?

Frank Serge: Sure. As you said, my name is Frank Serge, I’m vice president of Ediscovery and Consulting Solutions for Robert Half, and I can be reached at [email protected]

Charles Volkert: And Sunny?

Sunny Sanghani: Thanks Chad. Sunny Sanghani, associate director at Robert Half Legal, and I can be reached at [email protected].

Charles Volkert: Well thanks so much. And our listeners can reach me at [email protected]. You can also visit the RobertHalfLegal.com website to learn more about our ediscovery and consulting solutions, and also subscribe to our legal blog for weekly updates on ediscovery, the legal job market, and other important industry developments. Thanks for listening today, and join us next time on the Robert Half Legal Report for part two of our ediscovery management discussion.

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