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)

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.

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.

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.

E-Discovery Project Management: Ask Forgiveness Not Permission

When the leadership at ACEDS asked me to coordinate a project management panel for their 2016 E-Discovery Conference, held April 19-21 at the Grand Hyatt in New York, it occurred to me that few people in the legal business discuss project management in the same sentence with electronic discovery. When the subject does arise you’ll hear phrases like Legal Project Management tossed around rather loosely, or you may hear talk of organization-wide efforts to generally make process improvements. Mostly, it’s about law firms or corporate legal departments and how they might find ways to be more efficient.

But organization-wide project management initiatives require high-level buy-in and lots of resources and coordination. I don’t believe such resources are required in project management, particularly in the context of e-discovery projects. And I don’t believe permission is needed either. Do you need approval to save money? To reduce risk? To implement, efficient, defensible processes for managing electronic discovery projects?

So, for the ACEDS panel, it made sense to focus on project management in the context of e-discovery. We began the panel discussion from these questions as our premise, with the objective of demonstrating how to improve project management processes in e-discovery.

I’ve had numerous conversations about how project management processes can be used to manage e-discovery projects. It’s a little puzzling to some at first because, after all, we have the EDRM framework, right? Doesn’t that framework provide guidance? Now we’re going to introduce project management methodologies too? People say it’s confusing. I get it –what does project management have to do with e-discovery? Instead of a single framework –the time-honored EDRM—now we have to use a second framework?

Not to worry. The project management and EDRM methodologies are easily combined into a single framework. Let’s look at how that might be accomplished.

In a typical e-discovery project, we move from left to right across the EDRM from Information Governance through Presentation.

Electronic Discovery Reference Model (E-Discovery) (EDRM)

There are likely to be iterative processes, like review and analysis. But anyone in our business knows that e-discovery projects don’t always move forward in such a linear fashion. Issues arise on a case-by-case basis that change the project scope, timing, and cost. Still, generally speaking, progress is from left to right. But what if we took away the right to left motion of the project?

Before we answer that, first let’s look at the project management lifecycle. Project management depends upon five process groups and ten knowledge areas that help to organize all projects. Like the EDRM, the PM process groups move linearly in an orderly manner from Initiating through Closing.

PM_PROCESS_GROUPS
What if we take the basic elements of the EDRM and then insert the project management processes in a way that integrates the two into a new process framework that ensures each e-discovery phase is handled in standardized manner? What would this new Electronic Discovery Project Management model look like? Probably something like this:

E-Discovery Project Management Workflow

This new eDPM model requires thinking about each node of the EDRM as a sub-project of the larger e-discovery project. And instead of a right to left workflow, it requires that we think about the process in a down-and-over workflow. In this way, it is possible to integrate the project management process groups and all of the attendant principles and practices into the workflow.

Admittedly, this is a high-level illustration. This new eDPM model will require some elucidation, and or course some PM principles may not apply in e-discovery. But in the end this is a working methodology and it provides for a sound defensible process that recognizes the primary components of e-discovery and project management.

Some might argue that Information Governance is the foundation of an e-discovery project –how can IG be ignored? I do not disagree. We’re not ignoring IG. This eDPM model takes into account that IG involves many moving parts, policies and practices. Most corporations, law firms, and service providers have less than mature IG programs and they are not going to be prepared to undertake, least of all during the midst of an e-discovery project, the design and implementation of an IG program. The hope of course is that this will change over time, but for now it remains an unfortunate reality. So, for these reasons, it makes sense from a process perspective to start e-discovery projects with Identification and Preservation.

Similarly, with respect to the Presentation phase of the EDRM. Very few cases actually make it to trial, and anyone who has worked on a trial knows that they are a special kind of project unto themselves, very different from the more standardized processes like Collection and Processing. That said, presentation projects like trials, depositions, and hearings, are all sub-projects as well and project management may be used there as well.

The eDPM should be the model for working on e-discovery projects. This seemed to be warmly received by the audience at the ACEDS conference, which is the first venue at which the eDPM was demonstrated. It combines the time-honored workflow of the EDRM with the even more mature principles of PM to create a process framework that will lead to successful outcomes. My personal mission in the coming months will be to encourage and facilitate discussion on this topic and the use of the eDPM in the future.

Of course, you can weigh in too, right here, by clicking on the Comments section and offering your thoughts and suggestions.

2016 Browning Marean ILTACON Scholarship Award

Anyone who knew Browning Marean would have known him as a true ambassador of electronic discovery and of technology in general. One would not always make that connection upon meeting him. Browning had this wise, elder, grandfatherly thing about him. Not that he was old or anything; he was young, frankly, in the mind. It’s funny, because he was just as comfortable reciting Shakespeare as he was the latest e-discovery case holding.
I met Browning in a Chicago airport while we were both laid over for connecting flights. I was on my way to Phoenix and he to Europe. I knew him; he did not know me, or so I thought. He actually recognized me, waved me over to his table in the food court and said “didn’t I recently see you on a panel discussion . . .” Of course, I knew he had. But what surprised me is that he remembered. We talked for the next 45 minutes and we became fast friends. It’s the kind of man he was –always eager to meet folks, share his wisdom, and his Browning-isms. I’ve thought a lot about how to honor this generous and genuine man, someone I and many others considered a friend, but every time I thought I had an idea, somehow it fell short of the honor he deserved.
Browing
So, when I saw that ILTA is offering a scholarship in Browning’s name for attendance at their annual conference, I figured the least I can do is post something about the scholarship and pass on the link for registration in the hope someone who aspires to work in the business Browning enjoyed so much will apply and attend this year’s educational conference.
ILTA has established two scholarships to ILTACON, one for individuals who live and work in the U.S. and one for those outside the U.S. These scholarships are targeted to professionals who work within the E-Discovery/Litigation Technology and Support field.
Asked about his experience, last year’s U.S. recipient, Alex Ponce de Leon from Google, said that “winning the Browning Marean scholarship was a fantastic way for me to attend ILTACON and increase my involvement in a great organization. I was able to bring back and share the latest developments in the law and technology with my colleagues at Google.” And Matthew Golab from Sydney, Australia, last year’s recipient of the international scholarship, said that “it’s hard to put into words the experience of attending ILTACON as there are so many highlights…. There were many times when I wished I could attend several sessions running at the same time….Another highlight is . . . seeing the founders and owners of many key systems that we use in our industry, as well as many industry luminaries, and being able to introduce myself to them and have a chat.”
The application process is straightforward and painless to complete. Apply today! You’ll be glad you did. You may access the ITLACON scholarship application here: Scholarship Application

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.