Take Away: In Part 1 of our look at a recent publication from the Sedona Conference titled “Commentary on Achieving Quality in the E-Discovery Process”, we look at the importance of project management as a tool to control both the quality, and the cost, of the E-Discovery process.  

The recent publication from the Sedona Conference, Commentary on Achieving Quality in the E-Discovery Process, released in May 2009, attempts to bring the concept of quality control, as applied in many areas of business organizations, and show how these same processes can be used to help manage the E-discovery process.

In the opening paragraph of the introduction, the commentary describes the legal profession as being at a crossroads, between handling discovery the way it always has, or recognizing that the growth of electronically stored information is fueling the need for new processes and technical approaches to discovery. The goal is to introduce some elements of “quality measures” that may assist in “taming the ESI beast”.

After the Introduction, the commentary is broken into two parts, Achieving Quality Through Project Management and Better Measurement, and secondly Applying Quality Measures in E-discovery. Today, we’ll look only at the first half of part one.

The Importance of Project Management

This section of the commentary starts off with what should be a no-brainer to those of us working every day in an IT environment, explaining why any E-discovery project should have a well-defined process. Obviously, any time you look at even the simplest document review, let alone more complex E-discovery issues, you define the process before you even start. You define the goals; who is in charge, how you will measure success, and what the final results should look like. That over-reaching process lets everyone know what they should be doing, what still needs to be done and what kind of deadlines you’re up against.

They then go on to describe seven key process elements that, depending on the scope of your project, may need to be in place to lay the groundwork for the successful application of technology to the problem at hand:

  1. Leadership. The process should be led by a person who will be responsible for assuring that a discovery process reflects a reasonable good-faith effort to be complete and accurate.
  2. Tailoring. The discovery process should be tailored to the specific size, risks, needs and circumstances of the case or investigation that is the occasion for the retrieval effort.
  3. Expertise. The effort should incorporate and draw on the appropriate range of expertise required to meet and accomplish the goals set for it in a timely and cost-effective manner.
  4. Adaptability. The process should be iterative and adaptive, allowing for learning and course correction as the project unfolds.
  5. Measurement. Where appropriate, elements of the process should employ metrics in order to monitor the progress of the effort and to ensure consistent quality of results.
  6. Documentation. The overall process should be documented to ensure coordination and communication within the discovery team and to increase the defensibility of the process.
  7. Transparency. The selection, design, implementation, and measurement of a process should be able to be explained in a clear and comprehensive way to the relevant fact-finder, decision-maker, tribunal, or regulator, as well as to opposing counsel as may be appropriate.

I found it interesting that they chose “Leadership” as the very first element. In fact, there’s quite a bit of discussion in the next sub-section about the need for a team leader and who that person might be depending, again, on the details of your case. Inherent in this discussion of team leader is the understanding that it does take a team to do E-Discovery well. It’s not just the job of counsel, but it takes expertise in many areas and requires the involvement of a legal team (whether that is inside counsel, outside counsel, or some combination), the custodians of ESI, the IT team, and potentially technology expertise that is brought in by litigation support, vendors, or consultants. Obviously, the next two elements work hand in hand with this team concept, tailoring the approach, and the team, to the specifics of the case, and including the proper expertise on the team.

The other two key process elements I want to talk about in more detail are the last two, “Documentation” and “Transparency.” These elements of project management make it much easier for the team lead, or lead counsel in most cases, to answer any and all challenges to the E-discovery process. Having team members document what they do, and how they do it, ensures that the team leader can verify the results, by retracing the steps involved if need be. It also enables better communication among team members, eliminating duplicate work or unneeded delays.

Having transparency built in to the process from the ground up, which includes good documentation of course, allows for all the coordination between team members to go smoothly, but also ensures that, when challenged, it will be easy for counsel to provide the necessary explanations and measurements to defend the process. It also can help with the cooperative nature of E-discovery between the parties by making it easy for opponents to see that, yes, indeed, the process was reasonable and complete, letting them move past the “beast” of E-discovery and on to trying the case on it’s merits.

The Sedona Conference is correct in their opening paragraph. ESI is not the same as paper. Locating, reviewing, and producing relevant ESI can be a highly complex task, involving any number of resources, from human labor and time, right through equipment and technology tools. Proper coordination and scheduling of those resources can help the process be both smooth and defendable, and that sure sounds a lot like project management to me.

You can download your own copy of the Commentary from the Sedona website.

In Part 2 we will look at the need to measure quality in E-discovery.