What is required to make eDiscovery maximally efficient?
My oldest son is currently practicing his clarinet because he wants to go to a local magnet school. Practice makes perfect has become a consistent refrain in my household. While he doesn’t always enjoy the practice, he knows that it’s essential to achieve his goal.
The “muscle memory” that comes from relentless practice is equally important to eDiscovery. Experience supplements process to enable effective project management. “EDiscovery muscle memory” manifests itself as better judgment, smarter problem-solving and an eye for increased efficiency and cost-effectiveness. Experience is created by the “practice” of seeing more IT systems, using more technology, running more projects and taking ownership of more review processes.
In other words, experience matters in eDiscovery.
Seeing over the Hill
Of course, in legal practice, specialization always matters. When a client has a particular problem, there is never any hesitation in asking how many times a candidate firm has handled that particular type of matter before, whether there are attorneys that specialize in the industry or legal issue, what the prior results were and what team will be handling the matter. These are important qualifiers for any client selecting the best legal counsel.
In-depth, constant practice is even more critical in managing eDiscovery due to the number of areas in which experience is required: legal, industry, forensics, corporate IT, advanced software, process design, operational metrics, budgeting, project management, contracting, large-team oversight, statistical process control, etc. The more a lawyer handles eDiscovery, the more proficiency is gained.
EDiscovery is clearly a set of interrelated and incremental steps, all taken toward a particular outcome, with a seemingly endless array of options. The client’s IT environment is complex and ever-changing; the tools available for data continue to develop; document review best practices evolve with advanced new technologies and methods; and case conditions change and evolve.
Given this complexity, an eDiscovery process must provide for multiple options. Different technical solutions for a particular matter may have dramatically different costs and benefits. In each eDiscovery case, while the same series of process steps are applied, the project manager and supporting team must continuously apply informed judgement to manage the case effectively. Informed judgement is only gained by constant experience, by repeating the process over and over in vastly different contexts, and by carefully analyzing the inevitable process inefficiencies. This supplemental eDiscovery experience allows the trial team to avoid problems that might otherwise divert time and litigation budget from substantive representation.
For the sake of the discussion, let’s assume that eDiscovery represents between 20 percent to 40 percent of the overall litigation budget (this represents real dollars). Experience, along with process and project management, is one of the key factors that determines whether it will be 20 percent or 40 percent. In other words, experience brings the promise of a better-led eDiscovery project, where needs, risks and options are expertly anticipated, and clear recommendations are made. This experience enables an experienced eDiscovery team to help the litigation team “see over the hill” and understand the consequences of different alternatives.
Getting the “At Bats”
Clients consistently look for specialists when their legal problem requires it. However, clients and legal teams may not yet view eDiscovery in the same way, even in cases where the eDiscovery procedural issues and excessive costs could short-circuit an otherwise effective litigation strategy. Yet, how many litigators have developed their eDiscovery muscle memory on par with their litigation muscle memory?
Few litigators have a realistic opportunity to develop these critical eDiscovery management skills. The simple reality is that litigation cycles are long and do not allow most attorneys to get enough “at bats.” My career as the Firm’s eDiscovery Officer was paved by seeking out cases that had intensive eDiscovery; I attended every CLE on the subject, worked with clients on litigation preparation projects and invested in every Firm initiative on the subject.
The ten members of our Firm’s eDiscovery Group typically have at least ten years’ experience each and work on more than 100 matters annually. Their experience continues to expand and deepen to keep pace with the ever-changing eDiscovery legal and technical world. Our policy emphasizes early, continuous involvement with the trial team and client to ensure the eDiscovery approach and cost is closely aligned with the litigation strategy and budget. It is this continuous, hands-on involvement with a broad range of eDiscovery projects that sets us apart from litigators who have responsibility for eDiscovery, but do not regularly and directly manage it.
If a trial team keeps their eDiscovery experts at arms’ length, they tend to look at the process like a drive-thru, ordering eDiscovery advice off the “value menu” and then wondering why their results leave a bad taste in their mouth and a big hole in the litigation budget. Trial teams manage experts all the time in the context of a case. It is assumed that the expert’s knowledge of a topic will outstrip the trial team. Trial teams test expert assumptions, work closely with the expert to educate them about the case, ensure that the approach is meeting the needs of the clients, etc. It is, essentially, a close integration for the benefit of the client.
We believe an integrated team approach also provides a much better eDiscovery experience for both the trial team and the client. Within my firm, we’ve found that careful, continuous integration of the eDiscovery experts into the trial team is essential to reduce cost, disruption and the risk of needless motion practice. This takes practice to make it work right.
As I tell my son, lots of practice can make difficult things look easy, even the clarinet.