eDiscovery Project Roles and Communication Series, Part 6

A multi-part series providing guidance on how to effectively scope and plan eDiscovery projects

In the first Part of this series, we reviewed the value of preparation, planning, and checklists, as well as the evolving challenges and expectations associated with eDiscovery project planning.  In the second Part, we discussed the initial eDiscovery project scoping steps you must take.  In the third Part and fourth Part, we discussed some of the investigative steps that can follow, including targeted interviews, reactive data mapping, surveying, and sampling.  In the fifth Part, we discussed volume estimation and cost estimation, and in this Part, we move on to project roles and communication.

Slow Your Roll, Know Your Roles

As you transition from your planning and estimation activities into the full eDiscovery project, taking time to predefine key roles and communication guidelines can save significant time and confusion later.  Even a modestly-sized eDiscovery project is likely to involve individuals from:

• The Client Organization:
  • In-house counsel and support staff
  • IT and records management personnel

• One or More Law Firms:
  • Case team attorneys and support staff
  • Litigation support personnel
  • Internal or contracted review team personnel

• One or More eDiscovery Services Providers:
  • Forensic collection personnel
  • Data processing personnel
  • Document review personnel
  • Project management and support personnel

That is a lot of groups and individuals – each with distinct perspectives and priorities – to keep coordinated and moving towards the same goals.  The clearer the roles and guidelines established at the beginning, the easier that will be to do.

Primary Points of Contact

eDiscovery projects generate phenomenal amounts of intra- and inter-organizational communications, especially during the first few phases of activity.  To keep that communication flowing smoothly, it is useful to identify a single, primary point of contact for each organization. The majority of communication with that organization about the project should go through this individual, and they should be copied on any communications going directly to others on their team.  This individual is typically a project manager for the service provider, a paralegal or litigation manager for the client organization, and a junior attorney or paralegal for the law firm.  The identified individuals function as air-traffic controllers, ensuring that all traffic gets directed or diverted to the correct people within their respective organizations.  They also serve as early warning systems that can keep an eye out for potential issues requiring priority or escalation.

Delegations of Key Authority

Another extremely common challenge of early discovery phases is getting key decisions made in a timely fashion.  For example:

• Device acquisition decisions during on-site collection efforts
• Exception handling decisions during data processing
• Batch coding decisions during early case assessment
• Tagging palette change decisions during early review

Delays in any of these decisions – or many others – can cost money, as people and resources sit idle awaiting instructions.  These delays can be mitigated or avoided by predetermining the scope of authority being delegated to key team members at each organization.  Can the junior associate make these decisions without approval from the partner?  Can the law firm without approval from the client organization?  At a minimum, a designated decision-maker should be identified for on-the-fly collection scope decisions before full-scale collection is begun.

When A Paper Trail Is Your Friend

Just as important as setting a plan in place for key roles and delegation of decision-making authority is establishing some rules or guidelines for how communication should be handled, including how it will flow, what rules should be followed for email, and what other documentation should be generated.

Issue Escalation Paths

In any eDiscovery project, unexpected issues are inevitable: a custodian will fail to cooperate; a server will go down; a last minute scope change will be made; etc.  When those issues arise, it will be necessary to escalate the issues beyond the primary contact people for each organization and past the first-level decision-makers handling day-to-day activities.  Senior management of a service provider may need to step in to ensure resolution, senior partners may need to make difficult decisions, or the AGC or GC may need to get involved to approve additional expenditures.  Knowing in advance how these sorts of issues should be escalated, and to whom, can save time, money, and frustration when those issues arise.  You will want to know:

• Who are the after-hours points of contact at each organization and what are the preferred methods of contacting them?
• What is the escalation path at each organization, when primary points of contact or after-hours points of contact cannot be reached or cannot provide resolution?
• Who has final project authority and responsibility at each organization?

E-mail Communication Rules

Because of the large volume of email communication that will go on, and because of the legal significance of much of that communication, it is also important to establish some rules for that communication:

• First, how should the emails be labeled?
  • This would include, both any required privilege and confidentiality warnings that need to be applied to satisfy legal requirements, and any standardized subject line flag (e.g., matter name and number) to aid later identification, organization, and searching.

• Second, how should the emails be stored?
  • Since all of the emails are now relevant to the matter (even if all protected as privileged or work product), they must be preserved. Retention expectations and storage instructions (e.g., Outlook foldering and folder labelling instructions) should be communicated.

• Third, are there any restrictions on who can be included on project emails? Or on what can be discussed in them?
  • For example, some law firms or service providers may have a “firewall” between different internal project teams to avoid potential conflicts, or an organization may deem its proprietary business information too sensitive for any discussion in email.

Other Documentation Rules

Finally, you will want to establish some rules for any project documentation beyond email communications.  These rules should specify how non-email materials should be labeled, stored, and screened, just as you have for email communications.  Beyond that, these rules should also cover any documentation that needs to be generated.  For example:

• Are there recurring reports (e.g., weekly or monthly progress against budget) that need to be generated and distributed?
• Are confirmation emails to be sent documenting project decisions? Change logs?
• How should decision-making about culling and coding during ECA be recorded?

Establishing these rules from the outset will ensure that you have the materials and information you may need later to explain or defend the conduct of the project and its key decisions.

Role and Communication Checklist

As we noted in the first Part, checklists are invaluable tools for ensuring consistency and completeness in your efforts.  Here are model checklists for roles and communication, which you can customize for your organization:

1. Who will function as each organization’s primary point of contact?
2. Who at each organization will have authority to make key decisions?
3. How and from whom can after-hours assistance be obtained?
4. What is the escalation path for each organization?
5. Who is the ultimate decision-maker for each organization?
6. What protective language or identifiers should be used in email?
7. Are there any limits on the recipients or topics for email?
8. What are the storage and retention rules for email?
9. What are the labeling, storage, and retention rules for non-email documentation?
10. What recurring documentation, if any, needs to be generated?

Upcoming in this Series

In the upcoming final Part of this series, Key Project Scoping and Planning Takeaways, we will review key takeaways from across the series.