Cost, cost, cost. The client doesn’t want to spend any money. Why am I paying to process electronic documents? If they’re electronic, shouldn’t a machine just be able to do it? Why don’t we just produce everything in native format? These are just a few of the many anecdotal comments we hear when we mention discovery costs. The fact of the matter (no pun intended) is that there is a tug of war between processing electronic discovery the proper, defensible way and managing discovery costs. Managing discovery costs does not mean cutting corners and taking on risk—it is about making informed decisions and documenting them in a way that captures the spirit of the choice in context to the event.
Our intent is not to reiterate horror stories of electronic discovery mishaps and sanctions, but rather to provide practical and achievable suggestions and identify key factors that play a role in the outcome of the cost of discovery. After all, the Federal Rules of Civil Procedure begin with Rule 1 stating that the rules shall be “administered to secure the just, speedy and inexpensive determination of every action,” although “inexpensive” is a relative term in the context of electronic discovery.
Formation of the Case Team
As project management is being infused into the law-firm environment, working as a team (or core team) becomes more important, especially since the days of the “free-billing” case are all but gone. Identifying key people is essential to building a case team that covers most aspects of the work to be done. Below are various roles that need to be established and can be divided or combined as necessary depending on competencies and volume.
The team leader does not need to know all the nuances of electronic discovery, but he or she does need to know and be confident that there are others on the team with that knowledge and be able to manage them. The Sedona Conference, Commentary on Achieving Quality in the E-Discovery Process [PDF], May 2009, at 6. The team leader is typically in charge of coordinating the litigation schedule with opposing counsel and the team, assigning the various litigation tasks, and coordinating with the other team members to meet the litigation schedule.
This position is essentially in charge of gathering what is relevant to a document request for review and production. The person that fills this role needs to be competent in all aspects of electronic discovery to ensure a complete and thorough gathering and production of documents. This role works with the team leader or other senior attorney, who will eventually sign the Rule 26(g)(1) certification (or state law equivalent) that requires certification of accuracy and good faith in requesting and responding to discovery. This is often a role that is performed by either an e-discovery attorney, a competent internal consultant, or an outside consultant working closely with the legal team.
Shortly after the December 1, 2006, amendments to the Federal Rules went into effect, some jurisdictions began strongly suggesting or requiring that parties use a form “report to the court” e-discovery plan and that it be filed with the court. Some of these reports to the court require a person from each party to be identified by name and include a phone number. Careful thought should be given in the identification of the person for the report in that it could be a client’s IT person, in-house counsel or the discovery manager.
This role can be split, but if so, it is important that there be constant communication, because decisions made during the review process will affect how documents are annotated. These annotations are commonly used for production queries, and if groups of documents are annotated as exceptions to be or not to be produced, they may be omitted from production or, worse, produced to the detriment of the attorney-client privilege. The person(s) filling this role must be detail-oriented and must document decisions.
Planning to Plan
As the old saying goes, “If you fail to plan, you plan to fail!” With team players and roles defined, what is the next logical step? Everyone is ready to begin the task(s) at hand. It is far too easy to fall into the same old “full steam ahead” trap. It seems to make sense—we have all participated in discovery dozens of times and are familiar with the routine, so taking time to plan is viewed as inefficient. Stay the urge to push forward. The organization of a team is a critical first step towards success; don’t miss the mark now by marginalizing devotion to crafting a sound plan.
Complete team participation for initial planning sessions is essential to thoroughly account for the important components of the upcoming discovery project. Many details may be unknown at this point; this realization does not negate the need to meet before any work begins. The amount of unknown details to this exercise can equal the known. The following are some agenda discussion topics for the initial planning meeting.
It is crucial to discuss not only what should be done, but also what should not be done to meet client satisfaction. Internal investigations seldom require formal document production; therefore, the entire team should be privy to these details. This approach could prevent wasted preparation or even the execution of unnecessary work. Furthermore, do not attempt to disseminate information to team members on a need-to-know basis. It is not effective or conducive to quality team performance. The focused performance of all participants toward universally understood objectives with no one working in a vacuum will prevent errors and duplicated work due to lack of communication or miscommunication.
Present all timelines to the entire group and make them available throughout the duration of the project for everyone to see and understand. Generate a paper timeline calendar displayed in an open area or maintain a synchronized calendar in a computer program such as Microsoft Outlook. No one succeeds if team members are playing by different schedules.
Talk About the Budget
Don’t just state that the client does not want to spend any money on the project and believe the discussion is implicitly closed. The result will undoubtedly require uncomfortable client discussions about excessive budgets. Break down the various phases and determine the costs of each segment, but also put together a comprehensive project to conclude the feasibility of meeting the predetermined budget. Are plan changes or discussions with the client necessary? A conversation is easier now than it will be after the fact. Trust your team members. When they provide a budget plan, they are doing so from practical and historical experience. Don’t move forward with your own budget based on distrust of what the team is telling you. This could be a critical mistake with severe future consequences.
Develop the Communication Protocols
Most of the problems with electronic discovery cost overruns can be traced to poor communication. Good communication is a two-way street. Institute communication expectations on day one and enforce them religiously. Accept what may seem to be over-communication, because the opposite is destructive. Furthermore, beware of creating communication “roadblocks.” This is the restriction of communications from one person or group on a team toward the senior-level members. This is typically accomplished by placing one team member in the middle of the two groups as a “filter.” This is not only a poor communication mechanism that almost always fails, but it instills dissension and infighting. There is nothing more corrosive to successful teamwork.
Once the project has commenced, it is usually not necessary to broadcast every single matter detail to the entire team, but don’t leave team members guessing when and who they should inform and when they shouldn’t. Be detailed in determining communication protocol. Establish the list of people who need to be “in the loop” for certain events and those who do not.
Continued team meeting expectations should be a part of the communication planning protocols. Depending on the size and complexity of the discovery project, weekly or even daily meetings may be necessary to keep a project on track. Full team meetings are not required with such frequency, but fully attended meetings should be regularly scheduled to assure everyone is on the same page. The meetings do not have to last forever. Even if there is nothing to report, keep the meeting for no other reason than there is a schedule placeholder and all team members understand there is nothing to report. Be effective; use your project detail correspondence to establish an agenda and remain true to it for the meeting proper. Use subsequent meetings for off-agenda topics for only those members required. This will keep everyone engaged in critical team meetings.
Finally, discuss the discovery specifications to be used for the project. How and when will collection be identified and performed? What type of production is mandated? How will review be accomplished? Resolution for every detail is not required at this point; however, task-completion methodologies should be discussed if there is confusion. Perplexity about technique is not helpful and can lead to bad decisions based on misunderstandings. Once you get agreement and comprehension from all team members regarding project viability, sufficient comfort will carry over to the next steps, including dealing with opposing counsel(s).
Negotiate, but Cooperate
If you spend your effort on task completion, you out-maneuver by speed and knowledge—not by shenanigans and gamesmanship with opposing counsel.
With great effort, some key factors contributing to project failure have been eliminated by forming a team and developing a plan. Don’t go astray now by employing antiquated, unproductive gamesmanship with opposing counsel. Remember, the team has a solid plan. The unknowns are limited, and the selected team is prepared to execute successfully. Understanding one’s position is the first step toward positive negotiation. Because this was accomplished by teamwork and planning, any consequences that arise from agreements made with opposing counsel will be understood.
The next step consists of a shift in stance toward negotiation, upholding cooperative intentions with opposing parties. Team-building and planning appear effortless compared to resisting the routine obstinacy conveyed in pretrial discovery conferences. Fortunately, scrutiny for this obstacle is providing an arena for transformation. According to Sedona Conference writings, “Cooperation does not conflict with the advancement of their clients’ interests—it enhances it.” The Sedona Conference, Cooperation Proclamation 2008 [PDF], Jul. 2008, at 1.
The conference is preparing a road map to collaboration with its 2008 published Cooperation Proclamation. It is constructing a three-part course of action based on “Awareness, Commitment and Tools” where “the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation.”
When negotiating, if finer technical points are still vague, invite team experts to attend the conference. Additional assurance that “technically” inaccurate agreements or statements never come to pass save the need for embarrassing renegotiation later.
Stick to your plan. Only a compelling reason should warrant deviation from the plan based on the opposing counsel’s request. Determining the root of the request may reveal misunderstanding as opposed to an inadequate plan. It is often possible to meet requirements without completely altering your own arrangements.
If all else fails and agreement can’t be reached with good-faith attempts to satisfy opposing party requests, it may be time to let the court decide. Remember, conceding to opposing counsels’ potentially unreasonable request will likely cost your client at the end of the day.
Documentation of the Process
This will often be a tough battle, but documentation has too many benefits to weigh against the perceived inconvenience of capturing historical information during the heat of a fast-moving discovery project. Each unique matter requires differing actions to finish tasks during discovery, and all decisions are supported with valid reasoning. If these points are not documented contemporaneously, those reasons may be forgotten. If forgotten, facts needed to prevent a costly redo or a lost motion may be sorely missed. Also, documentation has often been requested in discovery mishaps to show the court that there was at least thought given to a process as part of a “reasonability” test.
There are numerous documentation points to consider within a matter, and every one conceivably impacts current or future project costs. Document procedural data for the tasks performed or to be performed with appropriate specificity. The gain of maintaining consistency across repetitive assignments is a given, but a historical accounting of actions will be preserved should these events be challenged. Future matters or projects will also benefit greatly from this practice, as will be discussed later. This documentation, as well as other forms, can be systematized throughout matter management with templates containing predetermined, common points of data capture. This will provide dependable documentation over the long haul.
Memorialize any project cost and time budgets prepared from planning through completion. Don’t overwrite budgets as they change. Create a new, updated version. This allows the manager to monitor and control expectations by sharing budget progression with all stakeholders, thereby keeping everyone accountable to the goals of the project. How many times have initial project budgets been referenced even though requirements have increased threefold? Good budget records eliminate disconnection between project fantasy and reality. Creating budget templates for utilization on all projects will provide routine reliability and conformity.
Document and centralize correspondence for every project to build a record supporting key strategy adjustments and other decision points during the project. Just finished a phone conversation that altered the review strategy? Provide a follow-up email to relevant team members, outlining the conversation, assuring collective concurrence and perception.
Many short-term rewards are realized through comprehensive documentation practices. Many hours have been saved on an individual matter when details about a communication or completed task are produced without endless hours of searching, or when someone is using a quality-control template to assure a task is complete to expectations instead of missing one final step due to forgetfulness. Documentation can bear extraordinary fruit over the long-term analysis of budget stats and reuse of recorded procedural facts.
The logical step of standardization follows practical documentation habits. The result is a foundation for building a uniform records process, repeatable methods for performing tasks, consistent quality-control expectations and effective communication protocols as today’s task and project information is gathered.
Standardization of the processes will begin to provide a sustainable method for consistently meeting cost and time budgets, providing a quality work product the first time around and providing more support to a defensible electronic discovery process.
A standardized process for assignment completion permits the accurate measurement of task duration and total cost when a specific job is repeated in subsequent matters. With increasing cost and time estimate precision, a fixed price can be attached to that task if desired.
As the process is defined and the results are documented, measurement is being captured to allow optimization. People and process are requirements for the optimal exploitation of technology. New software and other tools to automate discovery are entering the market at a dizzying pace, all promising to cut costs. However, you can’t experience the cost savings, and will actually spend more without first planning, documenting, and establishing standards.
Quality-control standards provide calculated evidence of continued success. Measuring too many errors for a certain task probably means the standards need addressing and optimizing for better performance.
Finally, standardization is designed for repetitive tasks performed on the majority of matters. The requirement that the tactics and expected outcome be consistent renders standards a logical course to maximize performance. Regulating the process frees a case team to concentrate its effort on nonstandard jobs while enabling creativity to rule in those solutions. Many people fear standardization, believing the opposite is true and thwarting movement in this direction.
Cost of Collection
A number of technologies and methodologies exist today to provide a sound and cost-effective document collection. An important step sometimes left out of witness interviews is questioning the witness about potential locations of data of which IT personnel may not be aware. This is a helpful step in that it can identify unknown sources that have been omitted by others. This avoids situations where, upon questioning, a witness might say, “I know everyone else does X but I found that the way I store my documents on an external hard drive is easier.” Although this may add additional data to review, it saves time and money from having to go back and re-collect and potentially re-interview everyone.
Evaluate what type of collection needs to be done. For example, rather than sending a collection professional, consider whether you can use a remote collection device instead. Avoid collecting documents and data by having the client send it through email. This typically increases cost by requiring the manual removal of the header email for review and production. If a custodian or IT person exports the emails as a PST and sends the PST as an attachment, the end user’s email system can quarantine the email because of the attachment format—possibly without notice to the receiver. The main reason to avoid this, though, is the lack of trackability.
Cost of Review
Much has been discussed about the cost benefits of outsourcing review to contract reviewers. However, there are a number of offerings in the market to reduce review time and costs even further that use both process and technology or a combination of both. These offerings typically allow potentially responsive documents to bubble to the top in various groupings that can then be reviewed and produced. Originally shied away from as black-box voodoo, these systems are starting to come into the mainstream as both counsel and the judiciary become more comfortable with their use. As with any device or system for reviewing electronic records, while they can be very useful, they can be dangerous when they are not used properly. It is best to take heed from the vendor sponsoring these tools rather than assume omniscience.
As stated above, a plan for review is necessary. This review plan may also contain a workflow diagram that shows the flow of the review as well as what entity is performing what task should a third party shoulder some of the review. A typical review strategy might be that documents are reviewed first for responsiveness. That group of responsive documents are then reviewed for privilege and segregated if necessary. Some additional factors to consider in the review are items like nonviewable files and how to annotate them to segregate them from production while allowing them to be reviewed in their native format for responsiveness. How will redactions be handled? Can documents be redacted to produce if they are partially privileged? Will emails and attachments be reviewed together for responsiveness, or is there a possibility they will be produced separately should either the email or attachment be privileged?
Although there are some who look at the above and see it as just additional work, these ideas most often prevent reinventing the wheel on several levels—from trying to figure out what was gathered all the way to what was actually produced and why. If a routine is followed from case to case, it becomes a matter of habit and can always be tweaked and modified as needed.
Keywords: litigation, business torts, technology, discovery costs, electronic discovery
Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).