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 the second Part, we discussed the evaluation and improvement of organizational litigation readiness. In this Part, we continue our review of eDiscovery program management issues with a look at how to evaluate your existing needs and resources.
Engaging in effective, proactive management of an eDiscovery program requires a full understanding of how that program has been operating up to that point. The complex, cross-departmental nature of eDiscovery projects can make the full cost and impact difficult to discern. How are things currently done? What is the true cost of doing them? What internal and external resources are utilized? Which activities must be undertaken most frequently? How well do current resources fit current needs? How are those needs changing over time?
These are all questions that can be answered by undertaking a multi-prong investigation into your own program, including gathering input from key stakeholders, reviewing personnel and financial records, and studying eDiscovery and legal records. Such investigation efforts tend to be proportional to the size of an organization and its litigation portfolio, so larger organizations may wish to secure outside assistance with the effort.
Gathering input from stakeholders is typically accomplished through interviews. The stakeholders interviewed need to include representatives of all the different internal and external departments or groups who either consume or provide any part of the eDiscovery services used by the organization. For example:
Regardless of which department, group, or outside service provider a stakeholder is from, your essential goal is to gain an understanding of how eDiscovery tasks are actually accomplished now and how each stakeholder thinks things could be accomplished better. Beyond that essential goal, the specifics of each interview will vary widely with the stakeholder’s area. For each area, you will need detailed information about any human and technological resources utilized, any time and money consumed, any recurrent challenges encountered, and any trends they can see in how those things are changing over time.
In addition to interviewing key stakeholders, you will also need to gather and review a variety of documentation to complete your picture of current needs and resources. While interviews are the most useful for understanding what is done and how it is done, accurate quantification of time, cost, and other details requires review of the relevant personnel and financial records.
Personnel records, in this context, refer to internal departmental or HR records, plus invoices from third-party service providers (including outside law firms). What you need to know is how much time from what sorts of personnel is being spent on these activities, how many FTEs are being utilized, and how are they distributed geographically.
Financial records, in this context, refer to some of the same material (invoices and internal staffing allocations), plus additional records from IT/IS of money spent on hardware, software, training and certification, etc. (or on seat license fees to third-party platform providers). What you need to know is how much money is actually being spent on these activities now, how that’s split between internal resource allocation and external expenditure, and how those costs are changing over time.
In addition to working with relevant staffing records, budget records, and invoices, you will also need to review eDiscovery project records (to the extent they are available) and records of the organization’s legal matters. From your legal matter records, you are seeking to quantify details about your litigation portfolio, including: what matter types; how frequently; what sizes; what values at risk; etc. It is also crucial to identify any history or likelihood of international matters or discovery involving international sources, as those circumstances can carry distinct legal and logistical challenges depending on the jurisdiction. From your eDiscovery project records, you are seeking to quantify additional details about your eDiscovery activities, including: data types; data volumes; data reduction rates; recurrent custodians or sources; recurrent challenges; etc.
Once you armed with all of this input and data, you can integrate it all into a document that accurately describes the current state of your eDiscovery program, including its costs and gaps. Your current state description can then be used as both a guide to making targeted improvements and a benchmark against which to measure other potential solution models.
Upcoming in this Series
In the next Part of this series, we will continue our review of eDiscovery program management issues with a discussion of potential solution models and the evaluation of service providers.