The Truth Matters in E-Discovery

Lady justice, blind and weighing the truthThe truth definitely matters. We’ve all read horror stories from the criminal courts. Unqualified experts, bad identification evidence, perjured testimony, tainted DNA, corrupt cops, less than candid prosecutors–all these things lead to unreliable outcomes in the mostly analog world of criminal jurisprudence. It’s no different in civil litigation when it comes to the use of electronic evidence. Information that companies possess and control can be manipulated, altered, corrupted, or deleted—inadvertently or deliberately. In most instances, there’s nothing nefarious going on, but occasionally parties and lawyers are sanctioned for wrongdoing in civil litigation as well.

Regardless of the forum, the expectation is that the information put before judicial factfinders, hearing officers, and others, is complete and accurate. One would like to think that good, accurate information leads to the “truth and justice” in our system of jurisprudence. Because, at the end of the day, the truth matters in both civil and criminal cases and fact-finders simply cannot get to the truth if the information presented is bad.

Information is Everywhere

But the fact is that the pursuit of truth is more complex today because we live in a world in which almost everyone is surrounded by vast amounts of electronically stored information (ESI). The Radicati Group estimates that the business world accounts for more than 108 billion emails sent and received per day. They estimate that number will to grow to 140 billion by 2018.[1]

And there is more information created in the world in the last few years than exists throughout all of humankind in the thousands of years prior. Ubiquitous computer devices transmit and store information. Our locations, up-to-the-minute news, sound bites, email, texts, and social media feeds, not to mention “Alexa,” new doorbells, and smartphone-controlled appliances. All this information may play a role in the truth-seeking process. It can help litigants to investigate events and tell their stories in court.

Information is now everywhere and nearly everything we do today is dependent upon electronic devices that store information. These machines are integral to daily life and they supplement the shortages of mere mortal memories. Indeed, computers now perform some functions that previously only humans performed. And computers are now smarter with technologies like Watson’s augmented intelligence and machine learning.

Still, there is work to be done.

The E-Discovery Market

In the United States, which is 80% of the global market, electronic discovery is a growing and thriving field. The market worth of the global e-discovery industry doubled since 2010 and the projection is it will quadruple by 2020. Driven by the massive increase of ESI and the need to manage that information for civil litigation, the market, including services and software, grew to over $7 billion in 2015.[2] One report projects 16% compound annual growth rate for services and software through 2022, increasing the market to more than $20 billion.[3] A Gartner report similarly projects double-digit year-over-year growth in e-discovery software.[4]

At the same time, due to the recession and slow economic recovery, the legal services industry is undergoing considerable change. Consider that law firms are folding and merging or reducing personnel to stay afloat. Corporate legal departments face pressure to reduce legal expenses. One need not have an MBA or a law degree to conclude that the current business model at many firms may not be sustainable in the long term. To survive, lawyers and legal support staff need to change the way they practice and deliver legal services.

By far, the most costly and time consuming aspect of litigation is the discovery process. The Rand Corporation reports that 75% of expenditures in litigation are attributable to discovery costs.[5] It used to be that junior lawyers would sit in rooms filled with boxes to review documents. Discovery is no longer about boxes of paper; instead, it is about terabytes of data. And discovery costs are higher not because of inflation or because attorney hourly rates have risen. In fact, e-discovery costs are considerably lower today than 15 years ago. No, discovery is more expensive now because there is so much more information and the higher volume of ESI drives that cost.Truth and justice at the Supreme Court The tsunami of information that has washed over the practices of the world’s largest organizations is not receding.

The Federal civil rules, adopted in 1934 and infrequently revised since then, have been amended twice since 2006 specifically to address ESI. The number of reported cases relating to e-discovery has skyrocketed recently and continues to grow. There are now e-discovery professional organizations and a multi-billion dollar e-discovery software and service provider industry capitalizing on the changes in legal practice and the deluge of ESI. Recruiters and headhunters now specialize in placing project managers, technical analysts, e-discovery specialists, and yes, e-discovery attorneys.

Going from Good to Great

So, the question becomes how to distinguish between organizations that are managing e-discovery projects well and those who are not. The solution, I propose, lies in identifying those organizations that have a consistently structured process for managing e-discovery more effectively and efficiently. I’m talking, of course, about organizations that apply project management principles to discovery projects.

There has been considerable discussion regarding the applicability of project management in a legal setting. Driving the debate is the need of law firms and corporate legal departments to find efficiencies and reduce legal expenses. Law firms, which rely upon corporations for a slice of the $300 billion legal services market, have begun to listen. Firms are adjusting rates, staffing leanly, or entering unique and tailored billing agreements. Few firms, however, are dramatically changing the ways in which lawyers work. And fewer still have adopted project management principles into their business model.

Applying project management methodologies to e-discovery projects is one tool that will differentiate great firms from good firms. And it will provide the efficiency and sustainability needed in a legal market that is very different today.

Bringing Order to Chaos

Project management brings structure and common business sense to law firms, which traditionally do not operate like a business. To the majority of people in the world –even the legal business—the words “electronic discovery” have little or no meaning. But “project management” is intuitive and people understand it to mean leading people, marshaling resources, and managing processes that lead to a desired outcome.

Most people have an inherent if not instinctive desire to be organized and efficient. It is why we categorize almost everything; it is frankly how the human mind works. Some people do it better than others, for sure. But in the end, we all want to get from point A to point B by the most direct route. And this means completing a task in the most efficient manner possible.

The use of planning, budgeting, and scheduling techniques, if executed correctly, can only enhance the discovery process. Ultimately, this aids the delivery of professional legal services. Monitoring and controlling e-discovery processes are critical as well. To maintain quality and effectively manage changes in scope, timing or cost, it is necessary to monitor each phase of an e-discovery project. And closing a discovery project is equally important. Performing a post-project review, archiving project documentation, and recording important metrics serve to prove a defensible process. They also provide much needed information for estimating The gavel of wtruth and justicefuture analogous projects.

The use of project management in electronic discovery can end the self-inflicted wound the legal industry imposed upon itself. Just like the record industry missed the boat on digital content, much of the legal industry missed the e-discovery boat. In many cases, it sailed right by.

Project management simply brings order to the chaos and puts the focus on sound, defensible processes. With project management, parties to litigation have reasonable assurance that managing their ESI is consistent with winning strategies. And this can help parties present their case in court. Quite apart from the cost, if missteps occur in the process it may be difficult to present good, accurate and complete information to the fact-finder. Following a consistent, structured process can only enhance a litigant’s chance of success.

Conclusion

Discovery of the truth is a foundational principle of our civil and criminal justice systems. When courts render judgment in a legal proceeding we want to believe that the truth has enlightened the path to justice. The judicial truth-seeking process, however, is only as good as the information presented as evidence. If you present unreliable information, the truth is compromised. It has now become clear that using project management principles can and will serve law firms and their clients well. An added bonus is the improvement of the truth-seeking process.


[1] The Radicati Group, Email Statistics Report 2014-2018.

[2] E-Discovery Market by Solution, Service, Deployment, Industry, & Region—Global Forecast to 2020 (Research and Markets, July 2015). http://www.researchandmarkets.com/research/zhg5cn/ediscovery  (global e-discovery software and services market expected to grow from $7.01 billion in 2015 to $14.2 billion in 2020—CAGR of 15.3%).

[3] eDiscovery Market–Global Industry Analysis, Size, Share, Growth, Trends and Forecast 2014-2022 (Transparency Market Research, 2015), http://www.transparencymarketresearch.com/ediscovery-market.html.

[4] , Zhang & Landers, Magic Quadrant for E-Discovery Software, Market Overview (Gartner, 2015), http://www.gartner.com/technology/reprints.do?id=1-2G57ESF&ct=150519&st=sb (e-discovery software market grew to $1.8 billion in 2014 and estimating five year CAGR of 12% with growth to more than $3 billion by 2019).

[5] Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (Rand Corporation, Institute for Civil Justice 2014).


Michael Quartararo is the firm-wide Director of Litigation Support Services at New York-based Stroock & Stroock & Lavan LLP and the author of the book Project Management in Electronic Discovery, published in June 2016 by eDiscoveryPM.com, LLC. He is a graduate of the State University of New York and he studied law in the UK. He is a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS). This article is adapted from content first published in Project Management in Electronic Discovery.

2016 ACEDS Conference & Exhibition

I attended the 2016 ACEDS Conference & Exhibition of the Association of Certified E-Discovery Specialists at the Grand Hyatt in New York City last week. Quite a show as usual. The leadership and management at ACEDS are a truly dedicated group of individuals committed to education and the growth and development of the e-discovery and litigation support industry. You can check out their content on the web here.

This year featured top talent from all corners of the e-discovery and litigation support industry. Now led by industry veteran Mary Mack, ACEDS is poised to do great things. But more than anything, I think their commitment to education is unparalleled. Day one included several sessions devoted to privacy and cyber security, the new hot topics folks are talking about. Sessions on forensics, hiring and analytics were presented as well. As were several sessions on project management (my favorite topic), including a session I moderated entitled “E-Discovery Project Management: Ask Forgiveness Not Permission.” The crux of what we presented is that while an organizational project management initiative may involve high-level buy in and loads of resources, you don’t need permission to undertake project management protocols within your discreet department. In other words, even tough your firm or organization may not have a formal PMO or the resources to launch one, there is nothing that prevents you from using project management methodologies and protocols to make the work of your department efficient. You don’t need permission to save money. To mitigate risk. To be more efficient. It was a great session. I’m preparing a separate post to illustrate how project management methodologies may be used specifically to manage your litigation support department. And keep an eye out for recordings of the session on the ACEDS site in the future.

The second day of the conference featured sessions on e-discovery education, ethical standards, and how to interview for a job in the industry. A great session with panelists from the judiciary addressed questions revolving around tracking terrorism and the Apple iPhone debate. There were also panel discussions on topics like bringing litigation support in-house, the power of affiliation with associations (a panel moderated by my good friend Maribel Rivera), avoiding sanctions and using six sigma for process improvement. Craig Ball’s presentation on the future of e-discovery was impressive too. And there was content for lawyers too, proving that ACEDS is not just a litigation/practice support organization.

And then came the awards luncheon. I was genuinely surprised, deeply honored and humbled to receive the ACEDS Person of the Year award. It’s great to be recognized by your peers. Thank you to those who nominated and voted for me. Many other people were recognized as well, including my friend Bill Hamilton, who received the Executive Director’s Award, and Craig Ball, who was awarded a Lifetime Achievement Award. The local NY Chapter of ACEDS was also awarded ACEDS Chapter of the Year. And congratulations to all the other award recipients (a list of which you’ll find here).

All in all, the conference was a huge success. As ACEDS continues to build it’s brand, it will become apparent that the organization is in this for the long haul. Their certification exam is rigorous and challenging and establishes a baseline for e-discovery competence in the industry. Their educational content is top-notch and spans a broad spectrum. And their people, led by Mary, Susan, James, and Al Lindsey, the chair of the advisory board, really have a finger or two on the pulse of what the industry needs.

4th Annual University of Florida EDRM E-Discovery Conference

Just back from Gainesville and the annual University of Florida EDRM E-Discovery Conference and once again congratulations to Bill Hamilton, George Socha, and a fantastic conference staff for putting together a top-quality event full of e-discovery education, camaraderie and conversation. What’s cool about the UF-EDRM conference is that you can attend in person or watch and listen online since the entire conference is streamed live over the Internet. I’m honored to be part of this conference again this year. Look for some pics in the Photo Gallery.

I spoke on a great panel related to the collection of ESI with fellow panelists Bob Rudnicki, Megan Kelberman and Jon Rowe. What is different about the annual UF-EDRM conference is it’s unique approach to how sessions are presented. Each panel consists of speakers, usually experts on the topic, who identify and discuss an issue or problem in the industry, and then there is typically a software provider who demonstrates how the software may help solve the problem. In this way it is unlike other conferences.

In our session, Bob Rudnicki presented the problem or “headache” of a putative class action lawsuit with the potential need to collect ESI from thousands of brokers around the nation. Megan and I (as the lawyer and litigation support professional, respectively) provided some “aspirin” and commentary on how Bob might go about solving this problem. And then Jon demonstrated his easy to use and defensible collection software. We also had great questions from the audience.

2016 UDEDRM Panel

The bottom line with collections, folks, is to focus on only the sources of ESI that will yield potentially relevant materials, use defensible tools that write-protect the data when it is copied, and document the process using a collection log and appropriate chain of custody.

Why you should read this book . . .

If the focus of your work or a goal in your career is learning the principles of project management, how they apply in a legal support setting, and how to use these principles to improve litigation support and electronic discovery deliverables in the legal industry, this book is the most comprehensive exposition on these subjects to date. Not only will it provide an understanding of the basic principles of traditional project management, this book also outlines the best practices in a relatively young industry in search of standardization. These two things make this book incredibly valuable to the novice. In addition, for the experienced practitioner and the journeymen in the industry, this book will provide a useful reference for years to come

The book is called Project Management in Electronic Discovery

Book Cover Title

I write in this book about the work that a project leader undertakes. But more importantly, I write here for lawyers, paralegals, students, and support staff at law firms and in corporate and government legal departments or at service providers. This book captures the principles of project management and the best practices of discovery in litigation, particularly as they relate to the management of large volumes of electronically stored information.

At the same time, it serves as a guide and reference for students of the law, paralegals, and attorneys, and illustrates how project management processes and technology may be used to provide efficient, client-oriented services and high-quality deliverables in a litigation support environment—at scope, on time, and within budget.

I am inspired here as much by the need for proper discourse on the use of project management in legal discovery projects as by the growing insistence that legal teams function more efficiently and cost effectively. That and the realization I came to recently when I was asked to help design and teach a project management class for students eager to break into the litigation support field. Try as we might, neither the university nor I could find an appropriate text for an electronic discovery project management class. An article I authored a few years ago that outlined some of the material presented here for a trade magazine served as a jumping off point for this book.

Another contributing factor has been my many working with lawyers and in law firms, most recently as the Director of Litigation Support Services at Stroock & Stroock & Lavan LLP. Putting in countless hours, making I imagine nearly every mistake possible, and observing a good deal of inefficiency, and now having designed and implemented litigation support and electronic discovery work-flows, I have some sense of what does and does not work. To be sure, not all project management principles strictly apply in the context of every legal discovery project. But many of the core principles can be applied and, in my experience working in the legal business, it has now become abundantly clear to me at least that using project management principles can and will serve law firms and their clients well.

Why write a book about project management and electronic discovery?

There has been considerable discussion regarding the applicability of project management in a legal setting. Driving the debate in part is the need of law firms and corporate legal departments to find efficiencies and reduce legal expenses. Law firms, which rely upon corporations for a slice of the $300 billion legal services market, have begun to listen. Most firms are adjusting hourly rates, staffing cases leanly, or have entered into unique and tailored billing agreements. Fewer firms, however, have dramatically altered the ways in which lawyers work and fewer still have adopted project management principles into their business model. This book addresses how project management may be used in a legal setting to make one aspect of legal work more efficient—the discovery process.
A distinction needs to be made between applying project management principles to the entire operation of a law firm and the application of project management to discreet aspects of legal practice. It is of course possible to apply project management methodologies to the operation of a law firm, from business development to matter management and throughout the individual cases, transactions, and subordinate tasks that make up the core of attorney practice. Indeed, a few firms focus on just that. The emphasis in my book, though, is on the application of project management principles in the context of providing litigation support services and the integration of project-oriented processes into managing legal discovery projects and, more specifically, electronic discovery projects.
There is much work to do in this area. In the United States, which is 80% of the global market, the electronic discovery market is growing incredibly fast. The market worth of the global electronic discovery industry has doubled since 2010 and is projected to quadruple by 2020. Driven by the massive growth of electronically stored information and the need to manage that information for civil litigation, the e-discovery market, including services and software, grew to over $7 billion in 2015. A recent report by Transparency Market Research projects 16% compound annual growth rate for services and software through 2022, increasing the market to more than $21 billion. A 2015 report by Gartner similarly projects double-digit year-over-year U.S. growth in e-discovery software.
However, due in part to the recession and the slower than expected economic recovery, the legal services industry is undergoing considerable change. Law firms have folded, others have merged, and even the best firms have reduced personnel by 10% to 30% in the past six years. Corporate legal department budgets are shrinking, and they face pressure to reduce legal expenses. One need not have an MBA or a law degree to conclude that the current business model at many law firms may not be sustainable in the long term. To survive, lawyers and legal support staff in the U.S. and abroad—those at larger law firms in particular—need to change the way they practice and deliver legal services. Applying project management methodologies to the practice of law is one tool that will differentiate great firms from good firms and provide the efficiency and sustainability needed in a legal market that is very different today from just a few years ago. Additionally, project management brings structure and common business sense to law firms, which traditionally are not run like a business.
By far, the most costly and time consuming aspect of litigation is the discovery process. Electronic discovery is the prime suspect in what is a disproportionate increase in discovery costs relative to the overall expense of litigation. It used to be that junior lawyers gathered in rooms filled with boxes to review documents. Technology has changed this. Discovery is no longer about boxes of paper; instead, it is about terabytes of data.  Information is now everywhere. Email and text messaging are ubiquitous, and social media, smart phones, and the Internet have invaded our lives. All this data is discoverable in litigation. Discovery is not more costly because of inflation or because attorney hourly rates have risen. In fact, the costs associated with discovery, particularly with electronic discovery, have gone down considerably. Discovery costs more today because there is so much more information and costs are driven almost entirely by the volume of data. These things—the volume of data, the time and cost it takes to manage this information—understandably have corporations, law firms, and the government concerned.
In a world overrun by electronically stored information, it should not surprise anyone that new processes, new technologies, and a new breed of legal support personnel have emerged. In the mid-1990s, as computers began to arrive at every employees’ desk, it became abundantly clear that email and electronic documents were a new source of discovery material. Still, it took years before for the legal community prepared rules that even acknowledged the discovery of electronic documents. Today, almost all documents are created on computers and they are stored not in file cabinets or boxes, but on optical disk and in databases. Analytics software, long used in other industries, is now used to parse through vast amounts of data and to find documents that make or break a case. The litigation support industry and the process of electronic discovery were born out of the need to integrate technology into the legal process. People who work in the industry provide technical support, software, project management, and consulting services to law firms, corporate legal departments, and the government. A completely new body of case law and rules governing the proper preservation, collection, review, and production of electronic documents has also emerged. This once nascent industry is beginning to mature and stabilize, and it seeks standardization and increased efficiency.
This is the backdrop for a book that introduces new and better ways to manage electronic discovery projects.