Process Empowers eDiscovery

Why another eDiscovery Blog?

As an eDiscovery group, we read just about every other eDiscovery blog out there. There is already plenty of material covering the case law development, espousing more technological adoption and discussing the most recent legal themes. Also, there are already numerous places for the eDiscovery professional to find resources to utilize in his or her practice.

What’s missing – and in our opinion, sorely needed – is a frank dialogue about the weaknesses prevalent in this industry and practical ways to fix them. We decided to start this blog to share our thoughts on meaningful cost reduction and ways of gaining more value out of the eDiscovery process. The blogs will be accessible to all consumers of eDiscovery services, but will primarily be directed at corporate legal departments and focus on the underlying reasons why eDiscovery has proven resistant to cost reduction.

The eDiscovery industry has benefited from several recent developments. These include changes in federal and state rules; the availability of new software to cull and analyze data and accelerate review; much lower vendor processing rates; and greater eDiscovery expertise within corporations, law firms and vendor staff. Why then do so many litigants still feel like eDiscovery’s costs far outweigh the benefits it brings to litigation?

Over the past several years, our team has taken a long, hard look at this fundamental question. While our eDiscovery team may work more efficiently than many, we wanted to address a more fundamental goal: transformation of eDiscovery from a high-cost / low-value compliance exercise to an absolute bargain for the value it provides.

Achieving this transformation entails a disciplined focus on bringing greater value to the client. This value comes not only through reduced cost, but by delivering more meaningful work product whose value will be immediately apparent to the client and their trial team.

This blog is about that continuing journey.

For these first few posts, we thought we would share a few of our core values as an eDiscovery group. Here, we will isolate one of them, which is suggested in the title of the blog.

Three Process Points

In eDiscovery, like its litigation context, client results must be the paramount end. How, over time, do you isolate the products of eDiscovery that enable better client results – like compliance with discovery obligations and improvements to legal representation – from the “waste” that does not further those objectives? How do you break through the bottlenecks that plague some projects and not others? How do you find and implement ever-improving cost reductions?

Corporations discovered the answer several decades ago: define and implement a systematic managed process to deliver high-value products at a continuously lower cost. Yes, we’ve heard “process” discussed in reference to eDiscovery. And, yes, we’ve seen attorneys’ eyes gloss over at the mere mention of the word “process.” But, stick with us for a minute through three quick points. They really matter.

First Point: eDiscovery requires process. This point is self-evident to anyone who has been through the exercise. eDiscovery is essentially taking a big dataset and machining a smaller, more useful dataset from it. The same basic steps are followed every single time. eDiscovery is not a craft; it is a legal factory that uses expensive machines and skilled labor to produce a precisely-designed product.

Second Point: Every (other) industry uses process to tame cost and reduce variance. Process has been used to make the manufacture of virtually everything less expensive and more consistent. Of course, there are points in each process where judgment must be exercised. However, even those points are subject to systematic process.

Third Point: A managed process improves over time. The words “process” and “improvement” are made for each other, like “burger” and “fries” or “Batman” and “Robin.” Process improvement implies that cost and value are measured, and positive feedback incrementally improves results through repeated, small, meaningful tweaks. A managed process delivers increasingly improved outcomes at increasingly lower costs.

Now that we rocked your world with our (obvious) insights, reflect on your last eDiscovery matter. Was it standardized, repeatable, measured and inherently improvable? Did it feel like a process that enabled you to save money, avoid waste and ensure quality? Or did it feel reactive and ad hoc?

Owning It

Process requires a lot more than an EDRM diagram. It requires precise task definition, consistency of communication, standardized metrics chosen so as to gain meaningful insight into potential areas for improvement, experienced project management, simplified budgeting, tracking of detailed costs and value at the operational level, and most of all a clear understanding of client value and how to deliver it to both the trial team and client. Process is not simple, but over time it greatly simplifies how to ensure work is performed to your expectations.

eDiscovery requires a precise, repeatable and customizable process to deliver better compliance and litigation outcomes at a reasonable cost. Process takes a lot of up-front effort and on-going calibration, but it reliably delivers results to corporate clients.

We have come to love process. Our eyes don’t even glaze over. At least not when we see the results. We hope that after hearing more of what we have to say, you’ll grow to feel the same way.