A multi-part series on eDiscovery program management issues facing serial litigants, including readiness, resources, service providers, metrics, and more
In the first Part of this series, we reviewed the concept of program management (as distinguished from project management) and discussed its potential cost and risk reduction benefits. In this Part, we discuss the evaluation and improvement of organizational litigation readiness.
Litigation readiness is a measure of how prepared an organization is to respond to the next litigation event that arises. How quickly can the organization leap into action? How long will it take to identify relevant sources and custodians? How long to identify the resources needed to begin collections and review? How many processes will have to be defined on the fly? How many wheels reinvented? How much unnecessary duplication of past work will take place?
Effective litigation readiness is principally tied to three areas: (1) an organization’s written policies and documented processes; (2) its data maps and other source documentation; and, (3) its data governance and remediation. Discrete efforts can be undertaken in each of these areas to improve readiness (and thereby decrease cost and risk), or all can be addressed as part of a comprehensive litigation readiness effort to achieve the greatest benefit.
The best way to speed up starting discovery activities and to avoid unnecessarily reinventing things project after project is to create written documentation around what needs to be done (policies), how it will be done (processes), and who will do it (roles).
Many serial litigants opt to establish written policies governing some aspects of their litigation and discovery activities. Written policies increase consistency and defensibility of your discovery activities. A Legal Hold Policy is the most common example. Such a policy sets in writing the standard for when an organization will issue a hold and what standards it will apply in determining scope, how it will act in response to preservation demand letters, etc.
Some organizations also establish written policies or guidelines defining different default actions for different matter types or sizes. Others establish policies identifying any sources (e.g., legacy systems) that the organization deems inherently inaccessible due to undue burden or cost. A policy can be established to address any recurring issue in your litigation activities for which you want to establish a clear, consistent standard to apply across projects.
Written processes can be paired with written policies to document how discovery activities will be carried out, including what techniques, tools, and human resources will be employed. Written processes increase speed, efficiency, and consistency. When prepared, there are typically discrete process documents for preservation and collection activities, processing and hosting activities, assessment and review activities, and production and trial preparation activities.
Depending on the size of the organization and the diversity of its litigation portfolio, distinct processes for different recurring matter types may be established as well. Some organizations with large litigation portfolios create a comprehensive Project Playbook that integrates together into one guide all of the relevant documentation, preferences, and step-by-step processes for executing discovery projects within that organization. All team members and service providers then work from that Playbook to handle in a consistent way each new project that arises.
Confusion over who is responsible for what and confusion created by disorganized communications are two of the most common causes of problems and delays in eDiscovery projects. So when creating written policies and processes, in whatever form, it is of particular importance to define the relevant roles, responsibilities, and communications guidance for these activities throughout. For example:
Creating and maintaining some form of data map is another step that can save substantial time and effort at the beginning of each new project, allowing you to quickly plan and begin an effectively-targeted collection effort. Additionally, knowing all of the potential sources to consider greatly reduces the chances of a relevant source being overlooked.
An effective litigation data map will document all of your potential organizational sources, what kinds of materials they contain, from what time periods they contain them, and what search and collection options or limitations are applicable. In addition, such a map will also typically document responsible individuals, automated janitorial functions, and information about computers and other devices issued to employees. It will also cover stores of data held for the organization by third-party service providers, along with relevant details about those stores.
Beyond data maps, organizations can also realize efficiency benefits from maintaining other forms of documentation related to potential sources. For example, tracking the sources and custodians implicated most frequently can aid in planning and prioritization for future projects, especially if tracked by matter type. Tracking sufficient details about what materials have actually been collected or reviewed in the past can also create opportunities for the reuse of previously collected materials or review work product (e.g. privilege determinations).
Organizations without clear policies and procedures for retention and destruction of their records and communications routinely retain far more material than is required. Establishing policies that define categories of materials and sets appropriate retention periods and procedures for each will ensure that less excess data exists for each project, while also providing you with greater knowledge of what there is and where it is, thereby reducing costs and increasing completeness.
Beyond establishing data governance policies, data remediation can provide even greater reductions in future project costs by further reducing over-preservation. Data remediation is the process of going through currently retained data to identify what older materials can be eliminated, in accordance with the organization’s retention policies, active legal holds, and other obligations. All old data that can be defensibly eliminated is more data that will not need to be mapped, preserved, collected, processed, or reviewed later.
It should be noted, however, that unlike written policies and documented processes, data governance or remediation efforts are much larger undertakings that will require the involvement of more organizational stakeholders. They affect more functions than just legal.
Upcoming in this Series
In the next Part of this series, we will continue our review of program management issues with a discussion of how to evaluate existing service needs and resources.