E-Discovery Teams: An Essential Core Competency
By Ben Kerschberg
Questionable e-discovery management practices resulted in severe judicial reproaches in 2011. Failure properly to oversee contract attorneys tarnished the reputation of a highly respected international law firm; its name is now synonymous with e-discovery malpractice. A court’s finding that a defendant had abused the e-discovery process contributed to a $1 billion jury verdict for the plaintiff. And a manufacturer’s blatant disregard for nearly every aspect of the e-discovery process resulted in draconian (and arguably deserved) federal court sanctions that will hamstring its litigation efforts for years to come irrespective of the outcome of any appeals. These are cautionary tales.
E-discovery is not easily mastered. Corporations with prominent litigation and risk profiles should consider building specialized e-discovery teams (“Teams”) that formalize management of this complicated process. Corporations realize significant benefits when e-discovery becomes an internal core competency based on top-down senior management support and inter-departmental cooperation between Legal, IT, and other departments such as compliance and records management, as well as the highly specialized vendor expertise provided by linguists and statisticians. Legal services outsourcing can also play an important role. The most important of these benefits is risk management in the form of carefully crafted, repeatable, and defensible processes. Second, Teams reduce the cost of reliance on outside counsel. And third, reduced costs and risk alter a corporation’s settlement calculus.
Senior Management Must Foster a Culture That Values Expert E-Discovery Teams
E-discovery Team membership is perhaps the single most important determinant of the initiative’s long-term success. Given the nature of e-discovery, it should come as no surprise that a Team’s core will consist of members of the Legal and IT departments. However, the linchpin of Team success is active participation from senior management member(s)—for example, the SVP of Compliance—who have an executive conference room seat and can ensure the highest levels of support for Team initiatives.
Why is senior management support so important? Corporations cannot afford to view e-discovery as a reactive, case-by-case process. Too much is at stake. A successful e-discovery strategy with a Team at its center requires establishing a culture that is both proactive in defining repeatable processes and promotes expert handling of the entire initiative.
Legal and IT: Cornerstones of E-Discovery Teams
Legal and IT must establish a common language to work together toward at least three key goals.
First, Legal and IT must continuously educate one another about their respective needs, expectations, and capabilities. Legal, for example, must take responsibility for ensuring that IT understands how changes in the scope of e-discovery and the need for new processes to remain legally defensible can place unforeseen demands on IT, including the need to search systems not previously relevant to a matter. IT, meanwhile, can be instrumental in helping Legal understand both its opponent’s and own computer systems and the ramifications (e.g., limitations) thereof. IT also should define its expectations of Legal. While last-minute requests are inevitable, Legal cannot simply look to IT to create e-discovery miracles. Until a Team has found its footing, IT may not yet have the expertise required for complex e-discovery. In those situations, Teams—and especially Legal—would be wise to consider the use of outside experts both to help with specific project needs and to further educate the Team. Moreover, mutually agreed-upon guidelines should be part of any Team initiative. These can be modified, but their principles should define an established modus operandi, the benefits of which inure to the entire Team, and thus the corporation.
Second, Teams must create comprehensive maps of where enterprise data resides. While hardly a simple mission, answering “basic” questions at the start is critical to the success of the third goal below: Who are our data custodians? What systems hold our data? Why types of data (e.g. structured and/or unstructured) are at issue and where? Does IT already have written policies in place? If so, are they followed with proper documentation of compliance? Do the policies need to be rewritten? These questions must be answered at the start of Team initiatives and be revisited regularly.
Third, Teams must establish, implement, and then enforce rigorous data retention and legal hold policies. Where such policies already exist, they should be reexamined based on the Team’s collective input. What may once have seemed obvious to Legal when it operated on its own may seem much less so in the context of the needs of an inter-departmental Team’s actual capabilities. In some cases, expectations will be tempered; in other cases, such realizations may spur an organization to expand its capabilities. The process transparency that inter-departmental Teams provide cannot be overstated.
Corporate Commitments Necessary for E-Discovery Teams to Succeed
Realizing the benefits of Teams requires commitments in at least three critical areas.
The importance of the first commitment makes it well worth restating. Senior management must embrace e-discovery as a foundation of operational excellence. In practical terms, this means a dedicated budget for staffing separate and apart from fees for outside counsel, which an effective Team will reduce. A corporation not yet ready to make such a commitment might be wise to delay the formation of its Team.
Second, members of a Team should be appropriately specialized and have minimal secondary responsibilities. Where this is not feasible, corporations should consider appointing an e-discovery czar who permanently oversees the Team. Ideally, that person should be the senior management member of the Team with a dedicated title, as opposed to someone from Legal or IT, as those departments’ respective interests are those most likely to need to be balanced.
Third, Teams should know what they don’t know. Each Team has core competencies within the enterprise and comparative advantages vis-à-vis third parties. In other areas, it is wise to bring in experts—often attorneys with particular e-discovery expertise—to improve processes and make them more legally defensible. Linguists and statisticians should be engaged for their invaluable contributions throughout the e-discovery process, especially in terms of perfecting models and metrics that keep reviewing attorneys on track with the most pertinent documents. Teams may also wish to reduce costs by availing themselves of legal services outsourcing (“LSO”), the corporate practice of establishing strategic partnerships with outside legal service providers to work directly with the General Counsel or in a tripartite relationship with both the client and its counsel. The best LSO firms have years of experience in the manual review phase of discovery. Their assistance can help enterprises leverage two important comparative advantages: (i) that of the LSO provider itself, and (ii) that of more expensive junior and mid-level law firm associates whose talents should be refocused on helping the client with far more complex duties.
Fourth, e-discovery cannot be performed without a technology platform. As obvious as it may seem, a Team should choose a solution that facilitates its goals. This is not always the case. Processes such as keyword searches and privilege designations should be repeatable, especially where core information is shared across many cases (e.g., product liability). The platform should allow for easy collaboration with third parties such as outside counsel and even opposing counsel (a valuable opportunity to share costs). It must be highly secure. Technology-assisted review must not ignore the critical contributions that a vendor’s human experts (e.g., linguists and statisticians) make to ensure desired outcomes, as set forth above. Finally, it should leverage Software-as-a-Service (SaaS) offerings that allow the Team to scale its use thereof, up or down, at minimal marginal cost.
Ben Kerschberg filed this content as a paid contributor to Xerox. The content is the author’s opinion and does not necessarily reflect the views of Xerox.