Paralegals Are Project Managers Too!

Paralegals are definitely project managers. Whether you’re traveling a long distance, going on a short road trip, or just heading out to buy dinner, the most important piece of information you need is where you’re going, right? To figure out how you are going to get somewhere, you must know your destination. While this is more difficult as we traverse our goals in life, when it comes to success in e-discovery and the world of legal and litigation support this analysis is much easier.

Managing a project is like managing a case

Every case and each part of a case can and should be viewed as a project. A project is a temporary, non-routine endeavor limited by scope, time, and cost that creates a unique product, service, or result. Projects have a start and an end and they are unique. Paralegals are drafting a motion, performing research, working on discovery, or a trial –all of these are projects or sub-projects of a larger case. Project management principles will help get the work done more effectively and more efficiently.

Who’s a project manager?

Project management, defined, is the structured application of skill, knowledge, tools and techniques to organize project activities and efficiently bring about a desired outcome. Paralegals do this day in and day out as they apply their skills to casework at law firms and corporations around the world.

Paralegals and legal assistants are as much project managers as any attorney leading a case. A project manager is the person possessing the applicable skills, knowledge, and talent who is assigned by an organization and responsible for overseeing and actively managing, among other things, the scope, time, and cost of a project to achieve project objectives. A project manager, like paralegals, must manage the interests and expectations of stakeholders and ensure that the project is completed at scope, on time and within budget. Along the way, they also measure and manage risk, ensure the quality of deliverables, and manage the personnel and other resources associated with a project.

If this doesn’t describe the role of paralegals working on a case, then it’s not clear what does. From the time their phone rings and they receive a new case assignment, paralegals are helping to manage and organize as the case moves through the stages of the litigation spectrum. Drafting, filing, organizing, researching, managing documents or discovery, cite checking – each of these are projects that require specialized skills, have dependencies, and must be performed efficiently. Without a doubt each of these tasks have time constraints and cost limitations. So, lest there remain any doubt—paralegals are project managers.

What does Done look like?

But confusion remains regarding exactly how project management principles integrate with legal work. Perhaps the most important question a project manager can ask when he or she leads a project is “What does done look like?” That question, as simple as it seems, together with the answer, should resonate throughout the project. Otherwise, the scope of the project lacks definition, and when a project lacks proper scope definition the outcome will likely not be successful. When you take on a new case or assignment, it’s important to gather all the information, requirements, and parameters. Remember, successful projects have a vision, a purpose, and a goal, and they have time and cost constraints.

But scope management is just one aspect of project management. There are several components to project management that should be understood, starting with an understanding of the project lifecycle.

The Project Management Lifecycle

Projects have a life; they have a beginning and an end. The project lifecycle begins with the five pillars of traditional project management, called Process Groups. Process simply refers to the discreet steps, actions, or operations one takes to achieve project objectives, the tools used, and an understanding of what each part of a project will look like as well as the final result. Process is identifying the inputs, tools and techniques, and the outputs required to produce results.

The Five Project Management Process Groups

To begin a project, it makes sense to have an orderly framework. The project management process groups provide that framework:

Paralegals Project Management Processes

At each stage of a project, the project team should consider the following:

  • Initiating: Should we take on this project? What are the alternatives? Should we make it or buy it? Do we have necessary agreements in place?
  • Planning: What does done look like? What is and what is not included? What resources do we need? Who will lead the project? How much is it going to cost? How long will it take? What risks are involved? How will quality be maintained?
  • Executing: Project work begins and deliverables are prepared.
  • Monitoring & Controlling: Are we on time? On budget? Are we maintaining quality? How are we monitoring changes?
  • Closing: Document what was done, record metrics and perform post-project review.

The Project Management Knowledge Areas

The lifecycle does not end here. Within each process group are specific areas of responsibility that a project manager focuses on throughout a project. Known as the Knowledge Areas, these are the core elements in each of the five process groups that a project manager must manage:

  • Integration management
  • Scope management
  • Time management
  • Cost management
  • Quality management
  • Human resource management
  • Communication management
  • Risk management
  • Procurement management
  • Stakeholder management

The Knowledge Areas help to structure, categorize, and navigate the order of project work. They must be consistently integrated, managed, and monitored across the five process groups during a project.

Together, the five process groups and ten knowledge areas provide a consistent framework for project work. This framework has been time-tested and it works.

The Ins and Outs of PM

Within the framework, a project manager is responsible for the Inputs, Tools & Techniques, and Outputs in each knowledge area. The project manager first gathers information and identifies the requirements of the project (Inputs). Second, decisions are made about the equipment, methodologies, and resources necessary to achieve project success (Tools & Techniques). And third, the completed tasks and activities become deliverables and, ultimately, the final product, service or result (Outputs).

To illustrate the point, an example is helpful.

Tasked with collecting electronically stored information (ESI) from a client for discovery, what Inputs are needed before beginning the project? What information is necessary to enable the collection project to move forward? In the very least you need the location, the names of custodians, and the sources from which you will collect the ESI.

Next consider the Tools & Techniques. Is there a particular collection methodology suitable to the case? What tools are required? Are there written protocols or best practices for performing a collection? Here you need to know if you’re going to forensically collect the ESI or use other less formal procedures. Ideally, you’re going to use a trained technician who employs software or hardware that write-protects the ESI to prevent it from being altered.

And finally, what is the Output? Obviously, one output is the collected ESI. But how is it maintained? What form is it in post-collection? Are there any other requirements or documentation that is required at the conclusion of an ESI collection? The expectation when collecting ESI is that it will be in native form and all the metadata will be intact. Additionally, you are going to want a collection log and, because the ESI is potentially evidence, you will need to prepare a chain of custody form showing who handled the ESI.

This is but one example of the how the traditional project management methodology works. The project management framework above and the process of moving from inputs to tools to outputs are a proven methodology. That’s why the more than 745,000 project managers across the globe in nearly every industry, including the legal business, use this methodology to achieve effective results. That’s why paralegals should adopt these processes as well.

Conclusion

I began my career as a paralegal and made the move into legal technology, litigation support and e-discovery. Through hard work I built a reputation for getting things done, for educating and training attorneys and paralegals, and for managing people and successful projects. I have managed some of the largest class action securities litigations ever filed. At some point, it occurred to me that there is a better way and so I began to look at the principles of project management and their applicability to case work in the legal industry. Doing so has served me well over the past two decades. My point here is simple: paralegals and legal assistants, like anyone working in any industry, are project managers too. They perform important project-oriented work that can only improve with the use of project management principles.

About the Author

Michael Quartararo is the Director of Litigation Support Services at New York-based Stroock & Stroock & Lavan LLP and the author of Project Management in Electronic Discovery (June 2016), which may be ordered from: http://www.ediscoverypm.com. He is a certified project management professional (PMP) and a certified e-discovery specialist (CEDS). Mike also teaches, serves as a subject matter expert, and sits on the advisory board of the paralegal program at Bryan University in Tempe, Arizona. He frequently writes and speaks on topics relating to e-discovery, project management, and litigation/practice support.

(A version of this article originally appears in the July/August 2017 edition of NALA’s Facts & Findings digital magazine, which may be accessed here)

Time Management Does Not Work

Time ManagementAs part of a training series within his organization, a good friend recently asked me to speak to up-and-coming leaders about time management. I begin to research the issue and I keep coming across materials suggesting that teaching time management is a waste of time. The fact is –and I guess I already knew this and my research merely confirms it– that teaching time management really doesn’t work.

Some may think it peculiar that the first thing a speaker on time management says is “time management doesn’t work.” Stay with me. By the end of this, you’ll realize that time management is not the problem at all. No, the fact is that we are our own worst enemies when it comes to getting things done. And time is not the problem. Time doesn’t care–it is going to keep moving no matter what we do. Time does not stop.

A Constant State of Reaction

Anyone who cares at all about their work rises each day and, at some point, considers what their day looks like. Then they get to work, their Inbox is blowing up, the phone is ringing, and their manager is standing in the door wondering how some project did a face-plant. The plan for the day is up-ended. The tension builds as time starts slipping away and planned tasks are slowly pushed back into the day, even to the next day.

As a result, we are in a constant state of perpetual reaction, jumping from project to project, task to task, and none of them are done particularly well. Everyone knows how this plays out.

This is no way to work; no way to make a living. We’re supposed to like our job, enjoy it, and have fun. It’s not possible when there’s nagging pressure to perform and stress. Under these circumstances, mistakes are made and we compromise quality. In addition, the stress leads to unhappiness and a lack of fulfillment on the job, and eventually, to burn-out.

The good news is there are a few things you can do to remedy the problem. Think of it like going to the doctor when you have the flu – there’s no cure for the flu; they simply treat the symptoms.

Today, we treat the symptoms of poor time management.

Symptom #1 – Lack of Clarity on Your Role

First, clearly understand exactly what your role is. If you don’t fully understand what your organization expects, you cannot perform. It’s like a road trip without a destination and no map. Read and understand your job description. Even on specific projects, if your responsibilities are not clear, lay it out for stakeholders.

Second, set expectations.  Let people know what you can and cannot do, and empower others to make use of alternative resources. If something is not within your role, delegate or ask for help.

Third, don’t try to take on everything. Learn to say “no.” This is tricky. When you work in a service industry, saying no is antithetical to providing good service. Do it with tact. Don’t just say “No” and walk away. Tell them “I need to get back to you on that” and figure out how to make it work. Remember, we’re all problem solvers.

Symptom #2 – Failure to Prioritize

As part of the clarity you need to do your job, management should be emphasizing what is important to the organization. With guidance from leadership you can then effectively prioritize things.

Prioritizing is not making a list of things to do; it’s making a list of IMPORTANT things to do. Each day take the first 10 minutes to schedule your day. Ten minutes of planning will save you an hour in execution—that’s what they teach in project management school. If it’s important, schedule it on your calendar. If it takes more than 30 minutes, schedule it. Use your calendar to block out time to complete the important things. In the end, it’s all about discipline. Have the discipline to set a schedule and stick to it.

A word of caution: do not underestimate how quickly you can get something done. We all do it. We think something will take 20 minutes, so it doesn’t get on the calendar. When we get to it, 20 minutes becomes 45 minutes to an hour, and now scheduled tasks are out of whack. Double the of time it will take to complete something and schedule it. Worst case, you finish early and grab a coffee.

The point is, when employees understand the most important aspects of their jobs, it’s easier to prioritize. Identifying and staying focused on the company mission and how you serve it highlights the important objectives. If your organization is not revealing what’s important, ask those questions.

Symptom #3 – Inability to Manage Distractions

Information inundates us all day long. Email, texts, social media, phone calls. We encounter distractions all day long. Consider the biggest distraction: multitasking. The research shows that while multitasking makes us seem more productive, the empirical evidence shows otherwise. Multitasking suggests you are perpetually reactive. When you multitask, you are playing defense; juggling a bunch of balls at once. Eventually, you will add one too many and drop them all. Quality work is not done this way.

The notion of attention management teaches how to control distractions. It trades single-tasking for multitasking, producing higher-quality results, and encouraging sustained, focused attention on singular tasks. A work environment focusing on and valuing single-tasking is healthier and prevents bad habits from taking root in the first place.

Next, consider email management. Email and social media sites are huge distractions. They are also a tremendous time-suck. Notifications all day disrupt our train of thought. Turn off the notifications on your computer and your phone. If social media and email are that important, schedule them into your day.

Email also ruins conversations. Have you ever been talking to someone who repeatedly looks at their computer screen or at their phone. It’s not only rude, it reflects poor listening skills and eats up time. If you’re talking face to face, give the person your undivided attention. That’s what good leaders do.

A few other email management tips: First, organize email so that you are able to quickly find messages in your Inbox. Create folders according to how your organization manages business records. There is no reason not to organize important communications, regardless of the work that you do or the industry in which you work.

Second, if email is a constant distraction, choose times throughout the day to read and respond to email. Otherwise, close your email. You don’t come in every day and open Word or Excel in anticipation of working in those applications, why do it for email?

And finally, unclutter the rest of your life as well. Do you have papers, folders, notes, case files, everywhere in your office? Clutter and general disorganization are a distraction. Get organized, file things and store things where they need to be. “Everything in its place and a place for everything,” my grandma always said.

SYMPTOM #4 – Lack of Workflow

Most employees manage their workload in their head. But one can only truly manage what they see, and you cannot see inside people’s heads. To manage something it must be tangible, centralized, actionable, and trackable. Workflow management skills are not taught in school and, as a result, workers are often left to their own devices with mixed results. This leaves productivity to chance.

Few individuals will come up with an effective workflow solution on their own; it’s easier to form habits. Identify the most productive people in your organization and review with them what they are doing to succeed. You may be surprised by some responses; but turn them into a workflow. Sure, there will be outliers who defy conventional work practices, but we are trying to improve the workflow of the masses, not the unicorns.

Complex work requires a methodology that enables people to be intentional, proactive, and thorough. The basis of a useful workflow management methodology is the ability to make tasks and responsibilities easy to organize, track, and act upon. A workflow methodology allows individuals to regain control, feel less scattered, and experience less stress. In addition to individual productivity benefits, when staff use workflow management, it offers other benefits to the organization, such as resource allocation, documented experience, and the ability to project, budget and track productivity.

CONCLUSION

As can be seen, the symptoms of poor time management are overcome by being proactive in all that you do. The cure is to start by:

  • Planning your day
  • Setting expectations
  • Scheduling activities
  • Avoiding distractions
  • Adopting a sound workflow

Each of these proactive steps can treat the time management woes that ail you. They will help identify the important things, increase focus and attention to detail, and yes, even improve time management.

________________________

Michael Quartararo is the firm-wide Director of Litigation Support Services at New York-based Stroock & Stroock & Lavan LLP and the author of the 2016 book Project Management in Electronic Discovery, published 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). Mike frequently speaks and writes on topics related to project management, e-discovery and legal support services.

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.

Alternative Facts and Artificial Intelligence

A few months back, a post here began by asking “Who Put the ‘Artificial’ in Artificial Intelligence?” At the time, I was sort of complaining about low adoption rates for technology tools in legal. I suggested that good marketing and “shiny object syndrome” are responsible for the rise of new technologies in legal. In the end, I question whether it’s appropriate to describe technology tools in the legal business as “artificial intelligence” tools.

Generally, I hardly think of myself as an “I told you so” type of person. If I’m being honest, though, I do think I told you so more than I articulate I told you so. (I like to think I’ve learned something tactful over the years). But an interview on Fortune.com got me to thinking.

IBM Logo Artificial IntelligenceFortune spoke to David Kenny, leader of the Watson Group at IBM. I thought while reading the interview that if anyone has a good grasp of artificial intelligence it’s IBM, right? Well, I have news: the word “artificial” really has no place in the technology tools that are in use in the legal industry—at least not the ones in use in e-discovery.

It’s Elementary My Dear Watson

To distinguish between the many AI terms out there, David Kenny said,

“Deep learning uses more advanced things like convolutional neural networks, which basically means you can look at things more deeply in more layers. Machine learning could work, for example, when it came to reading text. Deep learning was needed when we wanted to read an X-ray. And all of that has led to this concept of artificial intelligence—though at IBM, we tend to say, in many cases, that it’s not artificial as much as it’s augmented. So, it’s a system between machine computing and humans interpreting, and we call those machine-human interactions cognitive systems.”

“As for what we would call unsupervised learning—which is to say, we’re not training it to process but it’s beginning to learn on its own—that is moving more in the direction of what some consider true artificial intelligence, or even AGI: artificial general intelligence. I would say we’re at the early stages of that.”

Explaining how Watson is able to ingest the text of 26 million medical and scientific articles to help doctors find clinical trials for cancer patients, Mr. Kenny said:

“. . . it starts with knowledge extraction: reading documents, finding common phrases, associating those together. It does the same with paragraphs. Then it has to get corrected. The human annotation is critical here: Out of the gate there’s no way that I would trust the system to do unsupervised learning and just find the patterns on its own. You literally tell Watson, “Yes, that meant this, yes those go together. Yes, you have that right, or, no, you don’t.”

“And when you tell the system the “no’s,” it re-weights its algorithms until it gets to a point where it would have produced the correct answer. And it gets better over time.”

True Artificial Intelligence: Who’s Supervising Who

There you have it, folks. That is machine learning, hands down. And it’s precisely how the technology applies in e-discovery. It’s not a stretch, then, to say that what we are currently doing in e-discovery is not artificial intelligence. Additionally, what many now refer to as artificial intelligence is actually machine learning. Or, for the marketing folks out there, augmented intelligence (it’s still “AI” but not quite as sexy, right?)

To call it anything else, I think, is irresponsible and misleading. Lest we forget –and unless I missed something—the TAR, predictive and analytic programs in use in legal are algorithmic tools that require some level of human input. That’s not AI, as Kenny points out, because true AI is not supervised.

Why Does This Matter?

It matters because I think it’s not accurate. The reason it is “augmented” and not “artificial” in its application in the legal business is fairly obvious. But in addition, as far as I know, there are no lawyers –none who want to keep their licenses anyway—who are making important decisions, giving advice to clients, or reviewing and producing documents based on true artificial intelligence. No one plugs documents into a computer and spits them out without lawyers being involved (at least I hope not). Seems to me that there’s always a human to some degree augmenting the process.

Now, I’m not a scientist or a linguist. Heck, I barely qualify as a writer. It’s troubling, though, that in an industry in which facts and a search for the truth are paramount too much time and money goes to promoting products and ideas that are, how should I say, “artificial.”

I think it was the first celebrity law enforcement officer, Joe Friday, who said “Just the facts Ma’am.” So, let’s just stick to the facts in e-discovery and try not to promote tools that promise the stars and regrettably fall short. Ultimately, I think doing so will help foster adoption of technology in the legal industry.

I’d love to hear your thoughts on the issue, especially those of the scientists out there.

Information Governance: The Foundation of E-Discovery Projects

Sound information governance practices are easily the foundation upon which successful electronic discovery projects are built. I know this because I have lived it. Without question, projects run more smoothly when the client has strong information governance practices in place.

Records Management Reinvented

Information governance involves managing the creation, use, storage, and disposition of data, records, and information maintained by an organization. It encompasses ideas, concepts, and practices involving but not exclusively relating to electronic discovery. And it involves managing not only paper and electronic records, but all information maintained by an organization. It also implicates compliance with laws and regulations pertaining to records retention, information security, and the privacy and confidentiality of information.

Thought of another way, consider that the records or any electronically stored information may potentially be evidence in a lawsuit or investigation. Information governance, then, becomes critically important because the records of an organization provide insight into the past and sometimes future activities of that organization. The information may be needed to tell a story.

Long before we had e-discovery, we had records management. ARMA International, the largest records and information management organization in the world, has been around for 60+ years. Now we have this more holistic view of the value and the efficient, collaborative use of records and information, particularly as it relates to legal matters. Information governance is not a technology or a tool; it is not just policies and practices; or managing risks or costs; it is an enterprise-wide undertaking designed to organize information for the benefit of the organization. It’s the new records management – on steroids.

What’s a project manager to do?

Many people ask “what are the information governance responsibilities of a project manager in e-discovery?” For starters, it is essential for the PM to understand information governance, records and information management generally. A PM needs to have basic knowledge of information technology infrastructure and data management systems. And although it is ultimately the client’s responsibility to implement effective IG policies, there may be situations in which an organization does not have IG policies. A PM may need to guide the client or at least refer the client to resources that may help to structure sound IG policies.

One objective of information governance is for organizations to prepare for litigation. Being “litigation ready” means that an organization knows (or can easily determine) what information it has, where that information resides, and what needs to be done to preserve it for discovery when necessary. So, at the outset of a discovery project, the PM and attorneys should consider the client’s information governance maturity. If formal policies exist, what is the nature and substance of the policies? What is the extent of compliance with the policies? If no policies exist, how does that impact the preservation of information in discovery? Project managers need to help attorneys and their clients understand information governance and its importance to the discovery process.

Regardless of whether the client has policies in place, as a PM, it is important to understand how the client creates, stores, and disposes of ESI. It is necessary to learn the types of hardware, software, data processing and storage devices the client uses. This includes the client’s network configuration, operating systems, workstations, laptops, file and email servers, and backup systems. A data map or even a simple network diagram is helpful in learning about an organization’s systems and helps to visualize and identify the locations of the different types of electronic records maintained.

Figure 1:  Simple Network Diagram

Information Governance Server Diagram

Ask Questions (lots of them)!

Ideally, attorneys and the PM should confer with the client’s in-house counsel and IT and records personnel. A good practice is to use a questionnaire or checklist to ask about the client’s systems and identify assets that may contain potentially relevant information. Doing so not only provides a record of the conversation, but also enables attorneys to make informed decisions regarding the best course of action for preserving and later collecting the documents. A good questionnaire or checklist might make inquiry about the following:

  • Network configuration, storage, and operating systems in use
  • Types and number of file servers in use and the contents of each
  • Email applications, number of servers, mail store size and retention
  • Software applications, databases, or proprietary applications in use
  • Types of workstations and/or laptops in use
  • Remote access, home use, and personal and smartphone device polices
  • Backup systems in use; backup policies, frequency, and retention
  • Legacy or retired systems no longer in use
  • Policies on former employees, retention and disposition
  • External media, hard drives, CDs or DVDs, and flash drives
  • Internal or external websites, intranets, shared drives, and social media pages
  • Text messaging programs and unified voicemail systems

A client’s adoption of and consistent adherence to sound IG policies can demonstrate reasonable and good faith compliance with discovery obligations. If, for instance, documents or ESI are no longer available because they were disposed of pursuant to a formal policy before any obligation arose to retain them, then an organization should in theory be freed of the obligation to preserve and collect or produce that information. Defensible deletion like this will ultimately reduce the volume of ESI collected and can result in huge savings on e-discovery projects. It is not improper to dispose of ESI if there is no legal or other obligation to retain it.

Good IG policies can result in more efficient and cost-effective discovery projects. When an organization knows the information it has, where it is, and how best to preserve or collect it, the early stages of the e-discovery process will be more efficient. Likewise, an organization with sound IG practices is less likely to over-collect ESI in discovery, which further reduces cost.

Conclusion

The information governance stage of a discovery project—learning how a client creates, stores and manages its documents and ESI—provides the foundational underpinnings for many decisions that will be made later in the case. While the responsibilities associated with information governance rest for the most part with the client organization, it is important that the project manager and attorneys who advocate for the client know and understand the client’s IG policies and practices.


Links to additional resources on Information Governance:

Project Management: Holiday Edition

A project management christmas treeThis may come as a surprise to some, but if you think about it we apply project management to many of the things we do during the holiday season. Shopping for gifts involves initiating, planning, execution and closing. First, we consider how much money we’ve got to spend on gifts. Then we make a list (even if it’s just a mental list). During execution we run from store to store to find and buy the gifts. And finally, we close the project by wrapping them up nice and neat. Heck, we even get a little post-project review and feedback when folks open the gifts.

Decorating? Same deal. We plan where the tree will go and then systematically apply lights, garland, ornaments, etc. Dependencies are important here. You cannot, for instance, put the ornaments on and then the lights. And anyone lighting a menorah knows that there’s an order and timing to the lighting of the candles and certain rituals that take place each day.

And of course anyone who grew up in an Italian-American home like mine knows that the holidays mean massive amounts of food at various family gatherings. Well, guess what? Mothers and grandmothers all over the world are using project management to put these culinary festivities together. Consider that all sorts of planning goes into a holiday meal. Where will it be? Who’s coming? How many people? Which china to use? What will the courses be? There might even be a budget. In homes that were fortunate enough, there’s pasta, fish, meat, side dishes, salads, dessert. Fuhgetaboutit. You leave one of these meals wondering if you should visit a cardiologist or just swear off food for six months.

An Italian Christmas Dinner Table - Montreal Times

Whoever plans and then prepares the food most certainly puts a lot of thought into it. In most –I would think nearly all– families there may even be a whole team of people involved.

And then there’s execution. There’s most surely a shopping list. But think about the preparation. It might start a day or two before when vegetables are cut, things are pre-cooked or baked. And talk about dependencies. I mean, it’s necessary to prepare and cook all these things and bring the food to the table in the right order, at the right time, and at the right temperature. Meal planning and execution can be quite an undertaking if you think about it.

Uh, hello? What about quality control. Well, you can bet that all along the way that food is being tasted and snatched from serving dishes perched on the stove top while “Get out of the kitchen” is murmured with a variety of undertones by the cook.

Finally, you herd the cats into the dining room. The deliverables are on the table. Everyone eats, drinks, and is merry. You get instant feedback on this – no need for a post-project review. If yours is anything like mine, the entire family begins expressing right away how they feel about the food.

What about closing? That’s dessert.

So, as we sit down with family and friends this year, or we run from store to store, or you’re just trimming the tree, consider that it is project management –consciously or not—that on some level enables us to enjoy the holidays.

Merry Christmas everyone.

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Communication: The Root of All E-Discovery Problems?

Throughout all of recorded human history –indeed, even before we recorded it—communication has been an issue. Early humans made carvings in cave walls to allow others to know things. I’m sure that some among them thought that such carvings were quite radical at the time. And today, many people find the current scriveners—those who incessantly post their thoughts, meals, pets, children, and activities all over the Internet—are just as radical, if not outright crazy. No judgment. In the end, it’s all communication, right? Facebook is the modern day equivalent of the cave wall. Literally.

Communication BreakdownCommunication breakdown

Communication is something we attempt, but frequently fail to achieve. It seems to me that communication is the root of many of the world’s problems. From the relationship squabble to cultural and religious disputes around the globe. If people were more open minded, less judgmental and more tolerant of change and differences, boy, would many of the world’s problems evaporate quickly. Is this going to happen any time soon? Probably not in my lifetime. But it does –and you’ll forgive the massive segue– beg the question: Is communication the root of all e-discovery problems?

A few examples come to mind.

When parties don’t cooperate in discovery, it is essentially a communication problem. If case team or stakeholder expectations are not met, that’s a communication problem. When seemingly ad-hoc decisions are made in a vacuum and projects go sideways, that’s a communication problem. If faulty instructions for completing a task are given, that too is a communication problem. There are any number of examples that may be cited and readers will know them well.

So, what should we do when we perceive that communication is the root of the problem?

A Pillar of Successful Project Management

Well, there’s a reason that Communication Management is a pillar of project management. The goal, of course, is to be proactive and consider the communication needs of a project during the planning stage. Ideally, all stakeholders –anyone who has any interest in the project—will participate in a kick-off meeting to get everyone on the same page and then schedule regular meetings or calls to report on the status of the project and any changes or anticipated issues.

But all too often, we take communication for granted, put on the back burner, or sacrifice it in the name of expediency. We assume, for instance, that stakeholders understand when we inform them that a problem was encountered while processing ESI. If the problem impacts the scope, timing or cost of a project, there’s a good chance they won’t fully understand. This can lead to a lack of confidence in a project manager and sometimes results in a complete meltdown. It doesn’t have to be this way.

The Intersection of Communication, Quality and Risk Management

Part of managing communication on a project involves consideration during the planning stage of the risks to project outcomes – what could go wrong on this project? Evaluating those risks at the outset of the project and preparing a contingency plan at that time will lessen the impact of the problem. Likewise, itemizing the points at which quality checks are performed suggests that proactive thought has been given to potential problem areas and preparations have been made in the event issues arise.

Project Mansgement in Electronic DiscoveryNone of this will immediately resolve an unexpected issue that arises mid-project. Such circumstances can test a project manager’s communication skills. Successful project managers will possess –and those who don’t will need to learn to adopt—better than average communication skills.

“One of the strengths of a successful project manager is the ability to communicate clearly, succinctly, and without interference. Knowing what to say, to whom, when, and how is essential to successful communication on a project. Understanding the personalities and agendas of stakeholders and keeping in mind the culture, hierarchy, and politics of the project organization are all integral to effective communication. The communication process provides the critical links among people and information necessary for successful projects. Project managers spend a lot of time communicating with the project team, stakeholders, vendors, customers, and sponsors. Everyone involved in a project should understand how communications affect the project as a whole.” (Project Management in Electronic Discovery, p. 57)

Successful project managers in a legal setting also have people skills. They are articulate as much as they are able to listen and they persuade and make suggestions when implementing solutions. PMs display empathy, have coping skills, and great patience. They are also tactful and possess the temperament to deal with a wide array of people and personalities. The best thing a project manager can do is be honest and transparent in their communication. Nothing much more; nothing less.

Conclusion

One of the things that sets humans apart from the rest of the animal kingdom is our ability to communicate. The irony, I suppose, is that given this unique human ability one would think we would have it down by now. It’s a wonder why humans still mess it up so frequently. I don’t know if better communication is going to solve the world’s problems entirely. I’m an optimist and so I’d like to think it will, particularly as the world becomes more interconnected. I am, however, pretty certain that better communication can solve many of the issues that arise in e-discovery projects. Keep this in mind as you start your next project.

Selecting E-Discovery Vendors: Cost vs. Process

In many cases, preparing for an e-discovery project also means selecting e-discovery vendors. Whether you are in-house or at a law firm, you will at some point to engage a service provider or consultant to provide or supplement resources for some aspect of or even an entire project.

I had the privilege of presenting on a panel recently at the Master’s Conference in New York City, and the discussion revolved around selecting e-discovery vendors. Here’s a short digest.

First Things First . . .

The first good idea in my view is to empower project managers to handle the vendor selection and oversight process. This removes from the attorneys or the client the burden of managing e-discovery vendors. A good project manager will outline the scope of work, help prepare cost and time estimates, and oversee the work of the vendor while reporting the status to the legal team throughout the project.

But before engaging a vendor it is also prudent to consider several safeguards. First, e-discovery vendors should sign a confidentiality and nondisclosure agreement before performing any services. This protects the confidentiality of client information. Second, perform a conflict check to ensure that the vendor is not currently engaged in work that is adverse to the client.

The Cost Factor . . .

Let’s get the cost factor out of the way early because the fact is that cost is rarely determines whether an e-discovery project moves forward. Costs are driven by a variety of factors, including the volume of ESI involved, the time it takes to complete a task, and the people and the tools involved in the project. Market forces and advances in technology have dramatically changed e-discovery costs. Years ago processing cost $2,500 per gigabyte. Today, processing costs are at least 90% cheaper. But keep in mind, too, that the best way to control the costs on a project is to in the first instance collect only the ESI that is needed and take steps during processing to reduce the volume of ESI.

But cost should not control the fate of a project. Each case and project turns on its own facts and while anyone involved in an e-discovery project will consider cost, at the same time they also understand that you mostly get what you pay for. Having competitive pricing models is sufficient.

In the end, stakeholders are concerned about the cost of e-discovery vendors and every effort should be made to control the costs; but there are criteria more important than cost.

Vendor Selection Criteria . . .

When engaging vendors, it is important to focus on the needs of the case and the client. We discussed some of these factors during our session at the Masters. Today, vendors need:

  • Capacity: Be staffed with a sufficient number of trained and experienced project management, technical, and support personnel and have the processes, software and infrastructure needed to support project needs;
  • Security: Have acceptable security protocols and processes in place, including safeguards to ensure not just physical security, but also the integrity and security of client’s ESI, both at rest and in transit;
  • Quality: Have standardized processes in place to check, validate and measure the quality of their services and all deliverables;
  • Service: A range of services and experiences, but not necessarily a one-stop-shop; and a consistent commitment to responsiveness, communication, change management, and problem solving;
  • Stability: Demonstrate a continuity of service and personnel and a level of financial security for the company as a whole;

These criteria are not laid out here in any particular order; nor should they be. Each should have roughly equal weight in the decision-making process. In the end, those who engage the services of vendors need to trust that the vendor is committed to each of these criteria.

Additionally, remember that sales people are not project managers. Some sales folks are talkative and at times pushy, but the fact is that most salespeople are not in the trenches doing the work and they probably should not be relied upon to discuss project specifics and deliverables. Instead, the sales representatives should hand the project off to a project manager who will manage the necessary tasks and processes to complete the project. Also, notwithstanding recent reports to the contrary, no one who values their job is making vendor selection decisions based on the number of coffees, dinners, or event tickets provided by the vendor.

Lastly, good e-discovery vendors provide a statement of work and a cost and time estimate that details the nature and scope of the work to be performed during the course of the project.

Conclusion

Selecting e-discovery vendors is a necessary component of projects today. It need not be an unpleasant experience. Of course, sometimes things go wrong on projects. If there were one criterion for selecting vendors, having solid processes would trump cost every time. The ability to execute, to monitor and measure, and adjust to change, fix errors, and build a solid partnership are some of the hallmarks of a quality service provider. Consider some of the guidelines above and the vendor selection process will be a little easier.

This Week on eDiscoveryPM.com

We will be at the Ing3nious NorCal E-Discovery and Information Governance Retreat this Monday, July 18, 2016 in Half Moon Bay, CA.  Stop by to listen in on the any one of the quality panel discussions, or come by to discuss and purchase the recently released book, Project Management in Electronic Discovery. You can order your copy of the book at http://www.ediscoverypm.com.

Poster NorCal Event Mock Up2

There will be expert panels discussions on analytics, best practices, and ethical responsibilities in e-discovery

Project Objectives When Collecting ESI

Great project managers will tell you it’s always smart to start at the end. What does done look like? That’s the first question. Always. When faced with collecting ESI in connection with litigation, there are several project objectives to consider.

Collecting ESI is a critical task

Collecting ESI

First, though, it is important to remember that collecting ESI is a critical stage of a discovery project. Activities undertaken during collection impact every subsequent stage of the process. It is essential to perform a collection in a defensible manner. Using appropriate tools and personnel, planning the collection, and documenting the collection are some of the critical elements of a defensible collection process.

As I write in Project Management in Electronic Discovery, “during a collection project, the objectives are to perform a comprehensive—but not over-inclusive—collection of relevant materials, maintain the integrity of the ESI . . . and provide for proper documentation to maintain the chain of custody and to establish the authenticity of the documents. At the same time, the collection must not disrupt the organization’s business operations.”

Plan the collection project

The first objective is simple: Collect only the ESI that is needed. Make reasonable efforts to identify the potentially relevant ESI and keep the collection effort proportional to the needs of the case.

Planning is crucial when collecting ESI. At the outset, define the scope of the collection. Identify the custodians and data stores and narrow the collection by date range, file type, or other criteria.

I also write in the book that a “project manager is responsible for communicating with the client’s IT personnel and the individual performing the collection, and should coordinate, schedule, and monitor the actual collection process.” Obviously, project managers are well-suited to plan and coordinate collection activities, so be sure to involve them in the process.

Maintain the integrity of the collection

Next, it is important to maintain the integrity of the ESI. Collecting ESI improperly increases the likelihood for problems later in the project and there is a risk of spoliating metadata. If, for example, a case turns on whether or not a party took action or knew something on a specific date, and an electronic document that resolves the issue was collected in a way that altered or did not preserve the file or system dates, then the party advancing the argument is going to have difficulty making their point.

Additionally, in most cases it is necessary to produce metadata. Collecting ESI improperly could make it impossible to produce some metadata and it is often difficult to go back and do it again. Moreover, rework or performing a second or supplemental collection can only increase cost and expand the time to complete a project.Collecting ESI

Quality assurance and validating measures are necessary, too. Like performing a file hash analysis prior to and after collection. This ensures the integrity of the ESI by confirming that no files were altered during collection.

Document the process when collecting ESI

Third, document the entire process when collecting ESI. The documents may be important evidence in a legal proceeding and there are rules for the proper admission of evidence in court. Preparing a collection log and chain of custody documentation shows that the collection is defensible. They provide a record of the process that goes not only to the integrity of the collection itself, but also will assist in authentication and admissibility of the evidence in later proceedings.

Meeting the collection objectives

Many organizations face the initial question of whether to outsource collection processes or perform them internally. There are benefits and risks in both methods. One benefit of outsourcing is to transfer the risk associated with a technical process to trained professionals accustomed to performing such work. Few organizations are staffed with forensics experts, and few have the tools necessary to perform a proper collection. Engaging a service provider for this purpose mitigates and transfers the risk to that service provider.

In addition, it is rarely a good idea to subject individuals within a client organization to scrutiny regarding the handling of their own ESI. Individual custodians or IT professionals may not recognize the relevance of certain electronic documents. And the process of self-selecting ESI may lead to errors and/or inadvertent spoliation of data. Trained technicians, on the other hand, are accustomed to collecting ESI and can provide expert testimony if necessary. Also, they routinely prepare documentation and reports associated with collecting ESI.

That said, it does not mean that, in appropriate circumstances, a client organization may never collect their own ESI. There are relatively simple to use and affordable software tools on the market that make collecting ESI defensible. The question for the organization and perhaps their counsel is how much risk they are willing to assume in connection with the collection.

Conclusion: What does “done” look like?

Each case and collection project turns on its own unique circumstances. The collection method used should be based on the needs of the case and the client. Regardless of which collection tool is used, the objectives here provide the framework for development of a defensible collection process. That process should include planning and scoping the collection and trained personnel who use write-protecting tools and quality assurance measures. And, of course, the completion of documentation to memorialize the collection.

It is worthwhile to also consult other resources related to collecting ESI, such as the EDRM. Many white papers prepared by reputable service providers in the industry are good resources as well.