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©2017 Exterro, Inc. exterro.com // [email protected] // +1 (503) 501-510 1
THE
DEFINITIVE
GUIDE TO
E-DISCOVERY
Few professions in the world are like
e-discovery—a smorgasbord of legal and
regulatory compliance, technological know-
how, project management skills, and a little IT
thrown in for good measure. With the rise of
new privacy laws like the California Consumer
Privacy Act (CCPA), along with copycat
legislation being considered by 25+ states,
e-discovery and related legal processes—legal
holds, preservation and collection of data, and
review, for example—are certain to change this
year and into the future.
That said, Exterro’s Definitive Guide to
E-Discovery is 100+ pages of in-depth
e-discovery information designed to get you
through each stage of the e-discovery process.
The guide is broken down into five sections—
each with their own best practices, technology
tips, and up-to-date analysis to help maintain
streamlined efficiency across all teams that
handle data in your organization.
2 ND^ EDITION
©2017 Exterro, Inc. exterro.com // [email protected] // +1 (503) 501-510 2
Table
of Contents
PART 1
E-Discovery Project Management... 3
PART 2
E-Discovery Preservation....... 22
PART 3
E-Discovery Data Collection..... 46
PART 4
E-Discovery Early Case Assessment. 66
PART 5
E-Discovery Review.......... 85
Conclusion.............. 102
CONTRIBUTE
E-Discovery is constantly
changing, so if you feel we've
missed something and would like
to make this resource even more
comprehensive, please contact
Mike Hamilton, J.D., Director of
Marketing Programs at Exterro to
find out how you can contribute
to this resource.
THE GUIDE,
IN BRIEF
In this comprehensive
guide, learn how to
effectively incorporate
legal project management
principles and tools
into your legal process,
ensuring legal matters
are completed in a timely,
cost-conscious manner.
Contents
THE E-DISCOVERY PROCESS......... 5
WHY YOU NEED PROJECT MANAGEMENT
TO MANAGE E-DISCOVERY EFFECTIVELY.. 6
DEFINING E-DISCOVERY
PROJECT MANAGEMENT.......... 10
PROJECT MANAGEMENT ADVICE..... 13
4 STEPS FOR TRANSFORMING
YOUR E-DISCOVERY PROCESS....... 15
CLOSING THE LEGAL - IT GAP:
TIPS FOR COMMUNICATING BETTER... 17
TECHNOLOGY'S ROLE IN E-DISCOVERY
PROJECT MANAGEMENT.......... 18
CONCLUSION................. 19
I. THE E-DISCOVERY PROCESS LANDSCAPE
IDENTIFICATION PRESERVATION COLLECTION REVIEW
Identification Pitfall Can’t find or takes too long to identify relevant data sources Result Missing potentially responsive data
E-Discovery Gap # Legal team members can’t verify all potentially responsive data sources are identified
Preservation Pitfall Can’t track legal hold acknowledgements Result Custodians may intentionally or inadvertently delete responsive data
Collection Pitfall IT and Legal don’t understand what the other wants Result Duplicative or irrelevant information is collected
E-Discovery Gap # Collection parameters from legal are miscommunicated to IT
Review Pitfall Can’t efficiently review data collected Result Excessive amounts of data sent for analysis
E-Discovery Gap # No visibility into the analysis process
Analysis Pitfall Can’t actively monitor review costs Result Increased e-discovery spend
E-Discovery Gap # Attorneys waste time reviewing irrelevant documents for relevance / privilege
ANALYSIS
IDENTIFICATION PRESERVATION COLLECTION REVIEW ANALYSIS
Smooth Handoff # With increased visibility into data source locations, Legal is armed with the ability to send legal hold notices to the right people earlier
Smooth Handoff # With clearly defined collection parameters, less junk (system files, irrelevant data) is collected, streamlining the review process
Smooth Handoff # With more transparency into the preservation process, Legal can monitor and ensure that IT collections are conducted correctly
Smooth Handoff # With more detailed reporting and less data sent for attorney review, Legal can better predict and monitor costs
EXPENSES
THE AVERAGE E-DISCOVERY PROCESS 1
E-DISCOVERY TREATED LIKE A BUSINESS PROCESS
IDENTIFICATION PRESERVATION COLLECTION REVIEW
Identification Pitfall Can’t find or takes too long to identify relevant data sources Result Missing potentially responsive data
E-Discovery Gap # Legal team members can’t verify all potentially responsive data sources are identified
Preservation Pitfall Can’t track legal hold acknowledgements Result Custodians may intentionally or inadvertently delete responsive data
Collection Pitfall IT and Legal don’t understand what the other wants Result Duplicative or irrelevant information is collected
E-Discovery Gap # Collection parameters from legal are miscommunicated to IT
Review Pitfall Can’t efficiently review data collected Result Excessive amounts of data sent for analysis
E-Discovery Gap # No visibility into the analysis process
Analysis Pitfall Can’t actively monitor review costs Result Increased e-discovery spend
E-Discovery Gap # Attorneys waste time reviewing irrelevant documents for relevance / privilege
ANALYSIS
IDENTIFICATION PRESERVATION COLLECTION REVIEW ANALYSIS
Smooth Handoff # With increased visibility into data source locations, Legal is armed with the ability to send legal hold notices to the right people earlier
Smooth Handoff # With clearly defined collection parameters, less junk (system files, irrelevant data) is collected streamlining the review process
Smooth Handoff # With increased visibility into the preservation process, Legal can monitor and ensure that IT collections are conducted correctly
Smooth Handoff # With more detailed reporting and less data sent for attorney review, Legal can better predict and monitor costs
EXPENSES
LEGAL! IT!
BEFORE WE GET STARTED, PONDER THIS:
AND THIS IS THE GOAL:
Part 1: Comprehensive Guide to Project Management 5 © 2020 Exterro, Inc. // exterro.com // 503-501-
interviews, which often lead to additional or better custodians
- Destruction of data sources (such as laptops, custodial files, or mobile devices) when a custodian leaves the organization
Poor Legal Hold Discipline Legal holds are typically the first notice that an organization’s workforce receives in connection with upcoming litigation, and preserving ESI using a legal hold is often the first indication that an organization is taking its preservation obligations under common law seriously. It’s also an excellent opportunity for an organization to fail. Examples include:
- Using only a verbal hold notice
- Sending a written hold notice without any follow-up notices
- Not escalating to a custodian’s superior when the custodian is non-compliant
Poor Communication E-discovery requires constant communication among inside counsel, IT staff, outside counsel, and experts. In Zubulake , for example, Judge Shira Scheindlin cites the necessity of counsel to understand the client’s IT systems. Examples of poor communication include:
- Inadequate preparation of the designated person most knowledgeable (PMK) for 30(b)(6) depositions or designating someone who lacks adequate knowledge to begin with
- Not sharing log-in credentials to repositories with IT service bureaus
- Not instructing expert witnesses as to which repositories to search
Lack of protocols Using standardized e-discovery protocols creates consistent, defensible results and prevents tasks from being missed. Some
IMMATURE
E-DISCOVERY
41% of in-house legal
professionals rated their
e-discovery processes as
fairly immature.^3
II. WHY YOU NEED PROJECT MANAGEMENT
41%
examples where lack of protocols have precipitated motions for sanctions include:
- choice of keywords or Boolean search requests
- location of off-line repositories (such as back-up tapes)
- choice of repositories to search
- monitoring changes to employees (promotions, departures) that can lead to destruction of their data sources
Alienated Legal and IT Professionals Unlike almost any other field, e-discovery requires an unlikely collaboration between
two completely different areas of expertise: Legal and IT. As most lawyers would say, “I went to law school to avoid science and math.” Alternatively, most IT professionals would say, “I majored in a technical field to avoid writing.” This difference has caused numerous e-discovery headaches for each side.
E-DISCOVERY MATURITY
What is your legal department's legal project
management maturity?^4
LEVEL 1 Ad hoc - 11% LEVEL 2 Defined - 25% LEVEL 3 Structured -38% LEVEL 4 Managed - 19% LEVEL 5 Optimized - 7%
II. WHY YOU NEED PROJECT MANAGEMENT
11%
25%
38%
19%
7%
DEFINING E-DISCOVERY
PROJECT MANAGEMENT
III. DEFINING E-DISCOVERY PROJECT MANAGEMENT
What is Legal Project Management? E-Discovery project management stems from the broader topic of legal project management. According to Wikipedia, legal project management is “the application of the concepts of project management to the control and management of legal cases or matters.” Borne out of the desire to improve efficiency and effectiveness of legal services (chiefly caused by clients sick and tired of being billed by the hour), legal project management encompasses skills from scheduling to budgeting, legal department workflows, tools ranging from spreadsheets to SaaS platforms, the increasing number of legal operations professionals, and more.
While the concept of legal project management has been around for a decade or so (with Steven Levy’s Legal Project Management: Control Costs, Meet Schedules, Manage Risks, and Maintain Sanity from 2009 being the first notable book on the topic), it has only begun to be codified and documented more recently. The International Institute of Legal Project Management, which trains and certifies legal project managers, was founded in early 2017, and the Legal Project Management Competency Framework (LPMCF) defines global professional standards for legal project management.
“
Legal project management
takes into consideration
the different stakeholders,
their expectations and their
shortfalls. Behaviors can be
guided by designed workflows
that provide absolute clarity
to what needs to be done, by
whom, and when. Software
solutions clarify approval
processes and communication
flow needs, whilst maintaining
full information management.
Todd Hutchinson
Chairman, International Institute of Legal Project Management
III. DEFINING E-DISCOVERY PROJECT MANAGEMENT
What Are the Fundamental Principles of E-Discovery Project Management? As e-discovery project management is, at a fundamental level, an application of project management principles to e-discovery projects and turning to the Project Management Institute for a definition of basic principles. Starting with a definition of a project as having “a beginning, an end and a set of deliverable end products,” Herbert Spirer, Professor Emeritus of Operations and Information Management at the University of Connecticut, lays out some key principles of project management as directives in his article, The basic analytical principles of project management. Analyzing these principles and boiling them down yields some fundamental requirements of a well-run project.
1. Define project objectives as
deliverables.
2. Break down the work in terms
of deliverables (higher level) and
manageable amounts of work (lower
level).
3. Define all tasks required to accomplish
the project, their dependencies,
and start and finish times. Assign
accountability for each task to only one
person.
4. Schedule the project and assign
resources based on this understanding
of the tasks required. Estimate project
and times (pessimistic, most likely, and
optimistic) based on experience and/
or data.
5. Create milestones in the project to use
as motivators, progress checkpoints,
and critical decision points.
6. Use the plan and budget (whether
financial or resources) to monitor
progress. Use a control loop of
planning, measurement, analysis,
corrective action, and revision to refine
schedules and remedy variance.
Who Should Be an E-Discovery
Project Manager?
In most cases, lawyers, and in some cases
paralegals, served as de facto project managers. This had some serious drawbacks, the most notable of which is that neither role requires project management skills or training. Certainly, lawyers can function very effectively as project managers, but their education does not include project management training, and their primary role remains in functions like setting case strategy, negotiating, and litigating. Any time spent managing projects will take away from those tasks. Although paralegals play a different role on a legal team, the same principle applies.
The skills to look for a good candidate to fill a e-discovery project manager role include:
- Project management skills—the fundamental skills mentioned above
- Communication skills—both legal-specific on the team and client-facing
- Commercial skills—ensuring that legal matters are profitable for the firm/team
- IT skills—with legal technology a booming industry, it’s critical to understand the tools of the trade
- Flexibility—operating in a young field, changes may and will come fast
- Strategic thinking—taking lessons learned from completed projects and improving both efficiency (the processes) and efficacy (the outcomes)
E-DISCOVERY
PROCESS
IMPROVEMENTS
What is the biggest e-discovery
challenge you want to solve?^3
Controlling Costs
Completing Tasks Efficiently
Visibility into the Status of Legal Projects
Ensuring My Process is Defensible
Treat Each Case Like a Project As simple as it may sound, you have to be organized. You have to know the end goal. The best way to do that is through project management. Each case should be presented like a project, and you should be able to track the case from the beginning of discovery all the way through until a final answer is given. You should know at any given time in the process how many more steps there are to go. If you put it in a project outline, then you’ll know how long it should take for discovery based on the past. The best predictor of the future is the past. When you have the process documented, it makes things much easier because it can be very overwhelming, especially when you are brand new.
Automate Your Legal Holds When it comes to legal holds, you can’t just do it yourself. Don’t create some Excel spreadsheet and try to manage it manually. Make sure you are automating, because automation does the job for you, and you don’t have to think much about it. Once you get the notices out, the process should really run itself. Then it’s just a matter of following up on the reminders that come from the system.
A second consideration for legal holds is training.
PROJECT MANAGEMENT
ADVICE FROM IN-HOUSE LEGAL
PROFESSIONALS
Tara Jones
Legal Services Manager, Oath
Beth King
Sr. Paralegal Vestas American Wind Technology
IV. PROJECT MANAGEMENT ADVICE
#
#
#
#
Internally, I do a lot of training with our employees so they understand what a legal hold means and why it matters. People tend to think that it doesn’t include certain things, so we need to constantly be teaching our people. We’re actually in the process of creating a little internal module where they can go online and educate themselves.
Legal/IT Collaboration
What I think is really important, whether you are on the legal side or you’re on the IT side— especially when you are just beginning to delve into the quicksand that is e-discovery—is to collaborate with the ‘other half of the house.’ We’ve found that if Legal operates on their own, and IT operates on their own, there’s a really huge disconnect. There’s a huge communication gap. Legal needs IT to help them understand the technical pieces that they need in order to make their case. They might think they know what they need, but by providing IT with a little more information, you can collaborate and actually target what you need really easily.
On the IT side, it’s really important to make sure that you work with the legal side of the house to understand what it is that they
want. Once you understand what they want and you understand how you can get what you want, it just makes the process so much easier. Also, if you’re a beginning practitioner on either side, it’s really important to network not only within your organization but outside your organization as well, benchmarking with other companies, benchmarking with other law firms, understanding what other folks are doing. Because the truth is, there is no one true answer. By understanding the scope and possibilities that are out there, you may find that it’s a lot easier to answer your own questions and make the decisions you need to make that are specific to your matters.
Move More of the E-Discovery Process In-House One of the most important things with
E-Discovery is turnaround time. By moving this process in-house, an enterprise can do all the work themselves, avoiding reliance on a 3rd- party vendor for processing and review, as well as issues with technology and communication.
MANAGEMENT OF
E-DISCOVERY
Currently, how does your legal
department manage legal projects/
cases?^3
Stephanie Neal
Project Lead, Global Practice & E-Discovery Strategy at Large Insurance Company
Leo Balaban
IT Security Analyst University of Colorado
46% Matter Management Software
54+
40% Spreadsheets
60+
40% Email
60+
25% Legal Project Mgmt. Software
75+
11% Generic Project Mgmt. Software
89+
IV. PROJECT MANAGEMENT ADVICE
Enforcing Accountability
Through Documentation
Documentation also holds individual team members accountable to their responsibilities. A single weak link in the chain can derail an entire project, so individual accountability is paramount. Thorough documentation traces actions back to the person that made them. This is one area where technology can be a huge aid. Consider managing a legal hold via a shared spreadsheet (which many legal teams still use). A member of the team might carelessly enter incorrect data and, owing to the nature of spreadsheets, affect a number of other fields in the process. It might be hard to trace the mistake back to the person who made it if the team is using a standard spreadsheet application, like Microsoft Excel. On the other hand, an automated legal hold system with individual user logins will log such actions so those types of mistakes can be revisited and corrective measures can be taken.
Differentiating Process-Level and
Case-Level Documentation
When it comes to documenting the e-discovery process, it’s easy to get caught in the weeds. That last thing you want is hundreds of different documents that detail every step of the process. That level of detail isn’t just overkill. It's also ineffective, since busy e-discovery professionals don’t have time to sit around reading how-to manuals all day.
It helps to distinguish process-level documentation from case-level documentation. Process-level documentation provides the framework—the bones—for all projects to be built on. It needs to be firm enough to be repeatable and defensible, but flexible enough to handle different types of matters.
Case-level documentation is the flesh on the bones. This is how the broad process- level documentation is implemented in each particular matter. Case documentation explains what was done and why within the framework of the process, but in the context of the specific project details.
V. 4 STEPS FOR TRANSFORMING YOUR PROCESS
REDUCING
E-DISCOVERY
COSTS STARTS
IN-HOUSE
The four most effective techniques for controlling e-discovery spend(5)^ :
As more e-discovery activities are brought in house, the more important it is to have a defined, repeatable e-discovery processes.
Bringing more of the process in-house
#
Single source provider or preferred provider programs
#
Negotiating lower rates from providers
#
Litigation executive overseeing e-discovery group
#
Other Trends Driving the Need
for Documentation
There are other factors that have emerged in recent years that have also contributed to a more concerted focus on e-discovery documentation. For one, as the e-discovery software and services market has expanded, it has become increasingly necessary to have standardized procedures for measuring and documenting processes and functions in order to sufficiently source specific needs. A second factor is money. The costs of e-discovery are more easily managed and predictably understood when you a follow a standard recipe.
3
Establish Goals and Check-in Regularly Project bottlenecks or areas of waste aren’t always apparent until you actually quantify the process. In theory, you should have some metrics around your e-discovery efforts to serve as a baseline. If you don’t have metrics, it’s more than likely that your vendors do. You should be able to bounce your new process metrics off the historical data to see how they stack up. It’s important to make sure you are looking at the big picture and how processes and their underlying metrics relate to one another. For example, your assessment might reveal rising processing costs and prompt initial concern. But if those cost increases are being offset by lower review costs thanks to less data being sent over to outside counsel, it may actually be a sign of improved efficiency.
Leverage Project Postmortems
Stealing another page out of the project management handbook, project postmortem meetings can be a highly effective way to recognize issues. Postmortems often get overlooked in e-discovery, because teams are usually bouncing from one project to the next and rarely have a chance to catch their breath and look backwards. An assigned e-discovery liaison or manager must take a step back and make sure that the outcomes of any e-discovery project are measured against the initial objectives laid out in the kickoff meeting to help
expose areas that underperformed and look for opportunities to improve moving forward.
Assess Quality in the Context of Goals
It’s one thing to identify areas of waste and inefficiency, it’s quite another to actually acquire the additional resources—whether it’s technology, additional team members, or outside expertise. Before asking for budget, legal teams should make every effort to correct the issue internally with available resources. But e-discovery demands evolve and workloads ebb and flow. There are times when the best course of action is to bring in more firepower.
Metrics Are Key
Besides fully complying with e-discovery obligations and avoiding sanctions, the fundamental goals of any e-discovery project, there will likely be more nuanced objectives as well, such as locating a specific set of documents or controlling costs in a certain area. The goals will ultimately be dictated by the attorneys, but they may be based on information gleaned from other members of the project team with a more intimate understanding of the custodian and data landscape, so collaboration here is crucial.
You cannot make improvements without knowing the details. Defining and tracking metrics makes it much easier to control the e-discovery process and make informed staffing decisions. For example, if a case is escalating and going to require a full-scale review, and there are only 30 days until the production deadline, the best strategy might be to apply analytics and a technology-assisted review workflow early in the process, and then conduct a quality control check with the most effective reviewers. Advances in e-discovery software technology make it possible to assess the most cost-effective option before a single piece of data has been collected.
V. 4 STEPS FOR TRANSFORMING YOUR PROCESS
CLOSING THE LEGAL - IT GAP:
TIPS FOR COMMUNICATING
BETTER
TIPS FOR LEGAL
Ask Questions
For attorneys, admitting you don’t know something can feel like a courtroom blunder.
Don’t be afraid to ask IT why something won’t work or how something could be done better— it can only strengthen your position, and IT folks are happy to share their technical knowledge.
Be Specific
In the IT world, everything needs to be specified, so try to frame your needs accordingly. When there are ambiguities, reduce the scope into phases or tiers.
Communicate the “Big Picture”
Often the communication from Legal is on a need-to-know basis. But discussing the reason for a request could avoid a disaster and open the door for the IT team to contribute information that makes your case. So, when in doubt, share the context of your requests.
Tone Matters
Many people, IT included, may feel on edge communicating with lawyers under any circumstance, let alone at work. Don’t increase stress with unnecessarily demanding or alarming language.
TIPS FOR IT
Ask Questions
Legal and IT often speak different languages. Don't be afraid to ask for clarification from Legal about the specifics for the what, when, and why for requests.
Be Flexible
In the IT world, actions are very specific. But, to attorneys, “everything depends.” Assess what Legal’s actual needs are when you’re faced with what seems like an unreasonable request. Can you export information to tapes, for example, instead of ceasing deletion? Be sure to communicate all the options and explain how pursuing a different path may still meet what Legal needs.
Don’t Speak “Geek”
To an attorney, a system restore tape is a backup tape, and the words “delete” and “purge” are synonymous. Use familiar terms to help them understand the complexities of executing requests.
Clarity is Key
A willingness to answer questions—in layperson’s terms—will build trust and facilitate realistic expectations.
VI. TIPS FOR COMMUNICATING BETTER
Once the appropriate processes are defined and applied, e-discovery project management technology can help automate and standardize your e-discovery workflows. However, choosing technology can be confusing. Off-the-shelf workflow tools can help some organizations, but software that is designed specifically for e-discovery should be able to capture key metadata and provide reporting capabilities that improve the overall process. Whatever software you choose, look for these basic capabilities that will help automate your e-discovery process:
- Intuitive Dashboards that illustrate progress at a glance. Dashboards are especially helpful for PMs who simultaneously juggle multiple matters and need to be able to report on a particular project’s progress at a moment’s notice. Because e-discovery is an iterative process, there are constantly overlaps between project phases. To limit missteps, PMs need software that tracks all steps and provides graphical representations of multiple activities.
- Built-in, dedicated workflows designed for each phase and the entire e-discovery process are invaluable. Software designed around e-discovery workflows can clearly delineate processes, establish strict protocols and confirm that all involved parties are in compliance.
- Automated notifications, checklists and tracking mechanisms can save considerable time compared to manual methods, such as spreadsheets or
tracking logs. Well-designed technology that automatically documents all tasks can buttress both efficiency and defensibility.
- Project templates can make workflows and work product from one matter reusable in another, providing efficiency and consistency. This consistent, deliberate approach can support the processes’ defensibility.
- Reporting capabilities are essential, especially with regards to the metrics necessary to monitor and support the organization’s e-discovery process, such as audit logs and chain-of-custody reports. Robust reporting can further defensibility by precisely answering questions about task performance, status of specific ESI and more. It also offers an excellent way to analyze completed projects and derive business intelligence that can ultimately improve processes across multiple matters.
TECHNOLOGY’S ROLE IN
E-DISCOVERY PROJECT
MANAGEMENT
VII. TECHNOLOGY'S ROLE IN E-DISCOVERY PROJECT MANAGEMENT
