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TAKING THE BULL BY THE HORNS: EDISCOVERY PROGRAM MANAGEMENT

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Matthew Verga, JD Director, Education and Content Marketing Xact Data Discovery

– 11 year industry veteran, including: o 4 years practicing with an AmLaw 100 firm

o 4 years of project and enterprise-level consulting

o 3 years of program design, writing, and teaching

– Worked across every phase of the EDRM and at every level, from the project trenches to enterprise program design


TODAY’S SPEAKER


Program Management and Its Benefits

Evaluating and Improving Organizational Readiness

Evaluating Existing Service Needs and Resources

Evaluating the Available Solution Models

Evaluating Potential Service Providers

Management Metrics for eDiscovery

Ongoing Program Maintenance and Improvement

Key Takeaways

Engage with XDD

PROGRAM OVERVIEW

PROGRAM MANAGEMENT AND ITS BENEFITS



Far more than one eDiscovery project a year, and more than one at once – For large corporations, the median number of active matters is 20

Considerations beyond the individual project, such as: – How ready is the organization for the next project?

– Are available resources adequate to current needs?

– Should we insource more? Outsource more?

– What metrics should we track across projects?

These are program management considerations – Reduces costs and risks

– increases predictability, consistency, and defensibility

PROGRAM MANAGEMENT AND ITS BENEFITS

EVALUATING AND IMPROVING ORGANIZATIONAL READINESS



Litigation readiness – How quickly can the organization leap into action?

– How many processes will have to be defined on the fly?

– 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

3) Its data governance and remediation

Some, each, or all

ORGANIZATIONAL READINESS

WRITTEN DOCUMENTATION


The best way to speed things up and avoid unnecessary reinvention is to create written documentation of:

– What needs to be done (policies)

– How it will be done (processes)

– Who will do it (roles)

WRITTEN DISCOVERY POLICIES


Increase consistency and defensibility of your activities

– A Legal Hold Policy is the most common example

Such policies may also cover: – Different default actions for different matter

types or sizes

– Identifying any sources that the organization deems inherently inaccessible due to undue burden or cost (e.g., legacy systems)

DOCUMENTED PROCESSES AND PROJECT PLAYBOOK


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

Typically, discrete process docs for:

– Preservation and collection activities – Processing and hosting activities – Assessment and review activities – Production and trial preparation

activities

Other options include:

– Distinct processes for different recurring matter types

– Comprehensive Project Playbook

ROLES, RESPONSIBILITIES AND COMMUNICATION


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

Define roles, responsibilities, and communications guidance, such as:

– Who are the relevant stakeholders in legal, IT, records, compliance, etc.?

– Which responsibilities fall to in-house counsel and which to outside counsel?

– Which activities will be handled by internal IT and which by outside service providers?

– Who will be signing off on each phase of activity and ensuring its adequacy?

– How will communications be handled to ensure both coordination and privilege?

– What decisions can be made by phone and which require written confirmation?


Can save substantial time and effort at the beginning of new projects: – Allows you to quickly plan and begin an effectively-targeted collection effort – Greatly reduces the chances of a relevant source being overlooked

An effective litigation data map will document:

– All of your potential organizational sources o (Including third-party service provider stores)

– What kinds of materials they contain – From what time periods they contain them – What search and collection options or limitations are applicable – Automated janitorial functions in effect, if any – Responsible individuals and contact information – Information about the device types/models issued to employees

DATA MAPS AND SOURCE DOCUMENTATION


Organizations without clear policies and procedures for retention and destruction routinely retain far more than is required

Establishing retention schedules and destruction processes:

– Ensures that less excess data exists – Provides you with greater knowledge

Data remediation efforts

Governance or remediation efforts go beyond legal and require the involvement of more organizational stakeholders

DATA GOVERNANCE AND REMEDIATION

EVALUATING EXISTING SERVICE NEEDS AND RESOURCES



Evaluating Your Current State

The complex, cross-departmental nature of eDiscovery projects can make the full cost and impact difficult to discern:

– 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 questions can be answered through a multi-prong investigation into your own program’s current operations, including:

– Gathering input from key stakeholders

– Reviewing personnel and financial records

– Studying eDiscovery and legal records

SERVICE NEEDS AND RESOURCES



Gathering Input from the Stakeholders

Typically accomplished through interviews

Need to include representatives of all the different internal and external groups who either consume or provide any part of the eDiscovery services used by the organization

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


Reviewing Data from the 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)

– How much time from what sorts of personnel is being spent on these activities?

– How many FTEs are being utilized?

– 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 to factor in internal expenditures on hardware, software, training and certification, etc.

– How much money is actually being spent on these activities now

– How that’s split between internal resource allocation and external expenditure

– How those costs are changing over time



Studying eDiscovery and Legal Records From your legal matter records, you are

seeking to quantify details about your litigation portfolio:

– What matter types – How frequently – What sizes – What values at risk – Any international matters or sources

From your eDiscovery project records, you are seeking to quantify additional details about your eDiscovery activities:

– Data types – Data volumes – Data reduction rates – Recurrent custodians or sources – Recurrent challenges; etc.



A Map and a Benchmark

Integrate it 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


EVALUATING THE AVAILABLE SOLUTION MODELS



Before beginning proactive management of their overall eDiscovery programs, organizations: – Make case-by-case decisions about service providers and resources

– Buy services à-la-carte

– Treat each matter as a one-off

This approach offers great flexibility, but little predictability or consistency – It is a fine approach for the very occasional litigant

– As matters increase, the drawbacks of this approach start to outweigh the flexibility benefits

Once organizations begin proactive management efforts, they must wrestle with the question of what functions to insource and which ones to outsource

– Greater predictability and consistency can be achieved through aggregating and standardizing work either way, but the trade-offs between cost, control, and responsibility vary

There is no ideal, universal solution model; each organization is unique

AVAILABLE SOLUTION MODELS



Benefits and Trade-offs of Insourcing

Bringing activities in house grants the greatest

possible control over that activity and how it is executed

– Allows for the imposition of greater consistency to reduce risk and increase defensibility, as well as some added control over downstream costs for each project

The trade-offs for the increased control are increased cost and increased responsibility:

– Specialized software and hardware required is expensive – Ongoing training and certification will be needed – Insourcing activities makes the organization more

directly responsible for figuring out best practices and reliable processes

– Employees responsible may become affiants or witnesses providing testimony about those processes


Benefits and Trade-offs of (Aggregated) Outsourcing

Outsourcing provides great cost and responsibility benefits: – Allows you to use the greater volume and longer-term to negotiate better service rates

– Having costs fixed in advance for a contract term also increases cost predictability

– Specialists for advising on best practices, ensuring technical accuracy, and testifying on process

The primary trade-offs of outsourcing are loss of control and loss of efficiency: – Will not have the same level of control over how those activities are executed

– Greater effort required for effective oversight and coordination

Some organizations are uncomfortable with putting all eggs in one basket



Selecting the Hybrid Model That’s Right for You

Some organizations insource or outsource completely, but most opt for some hybrid of the two, aggregating and standardizing all activities, some internally and some externally:

– Most often insource collection activities – Because of their cost and complexity,

processing and production activities are insourced less often

– Because of the associated staffing costs and peaking capacity needs, analysis and review activities are insourced least often

What mix makes the most sense for your organization will depend on the existing needs and resources you identified and quantified in the organizational evaluation process


EVALUATING POTENTIAL SERVICE PROVIDERS



Proactive evaluation of service providers for the establishment of ongoing relationships

– As preferred provider, managed services provider, or total process outsourcing provider

Generally accomplished through a Request for Information (“RFI”) process

– Can be crafted effectively based on the results of organizational self-evaluation

Guides to the RFI process and sample RFI forms for service providers to complete are readily available on the Internet

– We will highlight some of the core competencies it is most important to investigate, along with some tips for an effective RFI process




Across all Services

Data and physical security Data backup and recovery capabilities/restoration time Conflicts checking and management process Support hours and available communication channels Project managers’ experience, certifications, etc, User training, project consultation, and other support Providing affidavits and process testimony Meet and confer planning and support Service provider’s prices and available pricing models How established and financially sound is the provider


Collection Services

Solutions compatible with your sources Forensic soundness and chain of custody Overall collection tracking and reporting Secure media storage for collection

Processing Services

Platform(s) used for data processing Compatible with your typical data types Processing throughput Standard or customizable filtering options Tools, specs, and customization for indexing Exception tracking and processing reporting



Review Hosting Services

Software platform(s) for review hosting Technical accessibility requirements Restrictions on system availability, up-time, or

simultaneous users Administration options for managing roles,

permissions, and access Tools in the platform for ECA, review design, and

project management

Review Services

Staffing of review teams Reviewers’ experience, certifications, and training Review project management, reporting, and oversight Review project design, analytic tool use, and TAR Quality control methodologies and standards



Production Services

Productions in any format

Experience with particular technical specifications (e.g., the U.S. DOJ Antitrust Division specifications)

Production throughput and lead time

Quality control steps for deliverables



Tips for an Effective eDiscovery RFI Process

Primary concerns first, rather than everything at once

Be as clear as possible in your

instructions and provide example responses where possible

Do not be afraid to dictate the way

prices should be presented or to provide a pre-made calculator

Pose one or more hypothetical

project scenarios to the participating service providers


MANAGEMENT METRICS FOR EDISCOVERY



Metrics: Intra-Project vs. Inter-Project

Countless opportunities for tracking metrics during a project – Responsiveness rates for different sources, overturn rates for different reviewers…

Even greater advantages, however, to inter-project metric monitoring – Reveals insights invaluable for proactive program management

o Identification of repeat custodians and sources

o More reliable future estimates of costs and times

o Determination of optimal processes for frequent activities

– Enables you to establish benchmarks for the cost, time, and effectiveness of various tasks, approaches, and service providers (including yourselves) o More useful assessment of individual project progress

o More meaningful evaluation of service providers

– Facilitates incremental, iterative improvement over time




Example metrics sets are available publicly, including the eDiscovery-specific EDRM Metrics Model

Example Collection Metrics

Sources, source types, and date ranges collected Volumes and data types by source and custodian Collection methods and costs by source, type, etc.

Example Processing Metrics

Throughput and error rates per platform, etc. Processing cost and time variations per data type Human versus machine hours required per data type



Example ECA and Culling Metrics Platforms and tools used Volume reductions achieved and time required Responsiveness rate during review

Example Review Metrics Batch size and batch organization employed Use/effect of email threading or near-duplicates QC time required and overturn rates observed

Example Other Metrics Matter type and value at risk Jurisdiction and presiding judge Total costs and costs per document produced

PROGRAM MAINTENANCE AND IMPROVEMENT



Ongoing Program Maintenance

1. Individual Project Post-Mortems

2. Periodic Service Provider Evaluations (and New RFIs)

3. Quarterly or Annual Program Reviews

4. Annual Policy, Process, and Playbook Reviews

5. Quinquennial Organization Self-Evaluation

MAINTENANCE AND IMPROVEMENT



Continuous Program Improvement A continuous improvement plan is a plan

for continual, iterative improvement of specific program metrics – attempting, each year to make:

– Specific tasks marginally less expensive

– Specific processes marginally faster

– Specific error types marginally less frequent

Similar goals can also be set for outside

service providers as part of term-contracts for managed services


Capability Maturity Models Measure your overall organizational

progress against some standard, like the five levels of a capability maturity model

Five levels of a capability maturity model: 1. Initial (chaotic, ad hoc, individual heroics) 2. Repeatable 3. Defined 4. Capable 5. Efficient

The eDiscovery Maturity Model developed by EDRM, applies those phases to the eDiscovery area in this way


KEY TAKEAWAYS TAKING THE BULL BY THE HORNS: EDISCOVERY PROGRAM MANAGEMENT


eDiscovery Program Management

Should be an active concern

Can reduce costs and risks and increase predictability, consistency, and defensibility

Consistency and completeness – the pillars of defensibility – are improved

Litigation Readiness

Create written documentation of what (policies), how (processes), and who (roles)

Data maps save time and effort and reduce the chances of missing a source

Retention and remediation will ensure less excess data and provide you with greater knowledge

Organizational Self-Evaluation

Interview representatives of those that consume or provide eDiscovery services

Quantify time, cost, and other details using relevant personnel and financial records

Review eDiscovery projects and legal matters to quantify data and legal factors

Evaluating Solution Models

Insourcing grants the greatest possible control in exchange for increased cost and increased responsibility

Outsourcing provides cost and responsibility benefits in exchange for some loss of control and efficiency

Hybrid solutions are most common and collection is insourced most often

KEY TAKEAWAYS


Evaluating Service Providers

Consider prioritizing areas of concern and exploring them in sequential rounds

Be as clear as possible in your completion instructions, including providing examples

Leverage hypothetical scenarios to gain insight

Management Metrics to Track

Track project details across multiple projects in a standardized way

Establish benchmarks for the cost, time, and effectiveness of various tasks, approaches, and service providers (including yourselves)

Set goals for incremental, iterative improvement

Ongoing Maintenance and Improvement

Implement individual project post-mortems, periodic service provider evaluations (and new RFIs), quarterly or annual program reviews, annual policy process and data map reviews, and quinquennial self-evaluations

Measure your overall progress against the five levels of a capability maturity model

KEY TAKEAWAYS


XDD email coming tomorrow with slides, recording, survey and invite to next webinar

RSVP for upcoming webinar on Wednesday, July 25th, at 1PM EDT:

– Trending: Social Media in eDiscovery

• Matthew Verga, JD, Director, Education and Content Marketing

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