Electronic Discovery Institute Course - Class 5

Here's a continuation of my postings about the Electronic Discovery Institute's online course, that you can subscribe to for just $1. I last blogged about this course on December 10, 2016. Class 3 is oddly omitted from the site. Go to https://www.lawinstitute.org/ to sign up for the course.

This is an outline of Class 5, 'The Supply Chain of Custody: Project and Process Management in the eDiscovery Workflow'. It is a discussion of this subject by Shari Aberle, a partner at Dorsey & Whitney LLP, Jessica Escalera, the Global Head of Legal Discovery Operations at Barclays, and Jack Thompson, the Senior Manager for Litigation Support at Sanofi, a French pharmaceutical company. A. The Electronic Discovery Reference Model Process Aberle described the EDRM as being widely used by companies to be efficient in the electronic discovery process. Escalera noted the EDRM is an iterative process, which begins with Information Governance, which is the most complex stage. There are a lot of different stakeholders in IG. The next stage Identification is then followed by Preservation - in each part of the EDRM the amount of data in reduced like a giant funnel. Data can either be preserved in place (such in email archives) or it can be collected, Collection is the next phase of the EDRM, following Preservation.. Aberle discussed Processing and Analysis. Analysis involves looking at summary information and key documents in order to make early decisions about case assessment. There will be a constant influx of data that will need to be analyzed. Escalera emphasized the iterative nature of the cycle between Processing, Analysis and Review. Review is when documents are marked as responsive, non-responsive, or privileged, is followed by Production. Aberle said that Production is not necessarily straightforward. Both parties need to be on the same page about what metadata will be produced and that ESI should produced as it is maintained in the usual course of business. Escalera said most cases hinge on a handful of documents. The process involves getting to those documents with the most efficiency and documenting the process. Aberle said that authentication issues should be addressed early on. B Work Production in the Discovery Process Escalera worked at many law firms, and found that collection needed to be documented so it could be repeatable. A more mature organization should have a standard and repeatable process for collection. Different documentation should be used for each phase of the EDRM. The documentation should help explain how documents were culled out and why. The process must defensible. Aberle said there was a need for a litigation readiness plan. There should be a data map indicating what is accessible and non-accessible. Team members can change over the course of litigation. Documenting the process will go a long way when you're five years into a litigation. Thompson emphasized the need to have a skilled staff of people for the process. C. Key Players and Skills in the EDRM Process Escalera said that in IG, there are many different stakeholders, (IT, records departments, etc), In the Identification phase there are two stakeholders: the legal team and the business workers who know where documents are. The stakeholder shifts from being business oriented to legal focused as you move through the EDRM. Money is the universal stakeholder, and the Review phase in the most costly phase. Decisions must be made about which parts of the EDRM can be outsourced. There are four buckets to consider for out-sourcing. For the first, collection, if there is a large footprint, it should be performed in-house. The second part involves whether or not to use in-house subject matter experts. Such experts can provide guidance throughout the cycle. Putting SMEs on the team may entail people with technical skills, or involving lawyers. The last two groups to consider four outsourcing are technology and review. Review is difficult to in-source. It's an eyes on process. Aberle said that both legal skills to develop a strategy, and also project management skills to improve efficiency are important considerations when building a team. D. Legal Process Management Aberle emphasized the need to explain to people the importance of the process, and how it will save the company money over time and protect the company's reputation. Thompson observed that IT will focus on how data can be transferred between system but that other groups will have different priorities. Senior management, will just focus on the overall data collection.. Escalera said stakeholders must understand the basis of the process. The underpinning must be documented process management, which will help mitigate risk. Legal process management helps analyze costs and risks, and what is making electronic discovery expensive. E. Integrating Legal Skills in Process Management Thompson said that the first steps must be understanding what the cost drivers are and where data is located. There must be a good dialogue with IT that harnesses their knowledge of where data is. Facilitating communication is an important skill set. Escalera said that lawyers are not often good project managers. When dealing with large data sets project management is important. Each involves asking how data is collected, and dealing with specific issues so the relevant data can be . Thompson said that everything revolves around scope of process. F. Monitoring Costs Escalera said that managing costs is something that she and her senior keyholders are keyed into throughout the electronic discovery process. A case should be budgeted before the process is started. A model should be built to help predict costs. Some companies rely on templates and spreadsheets to manage the process and track the budget rather than relying on complex tools. Aberle acknowledged that there are complex tools to manage costs. She emphasized the importance of task coding. She also said that workflow technologies from knowledge management systems could be made use of. G. Understanding the Data Escalera said the best way to avoid errors was to understand the data before beginning. The more you understand your system, the better you can be downstream and not have to repeat work downstream. Aberle said the legal team should be able to figure out what is accessible and what is non-accessible. Decisions should be made about the importance of certain types of metadata early on. Thompson said that if you know a good percentage of data is cloud or SaaS based, costs will go down. H. Identifying Process Experts. Escalera discussed the problem of validating the process. It is a big mistake to assume that an IT person is the best person to explain the process in a deposition. If it is an IT person they need to know how to explain the legal process, and know that they should give facts and not guess at the answers for certain questions. Aberle said that when identifying an expert about the process, she wanted to select someone who was able to speak the language of attorneys. I. Tracking in a Discovery Plan Escalera said that the more you can track the better off you will be. How decisions are made to include about what include for predictive coding, what Review manual is used, what QC is used for the Review process, should all be tracked. If you don't know what you were trying to do it's hard to quality check. Thompson said legal hold notifications, collection notification, cases with similar issues, custodian interviews, a master data list should all be tracked in a discovery plan. Aberle said that a discovery plan should track different sources of data in terms of what is accessible and inaccessible; when a hold was issued or re-issued, and who it was issued to; what steps were taken to process data; clawback / protective order issues; and chain of custody considerations. J. Tracking Billing and Spend Aberle recommended the use of task codes so the client can actually see in which areas its money was spent. It is an area her firm needs to improve on. Thompson said there were opportunities available for cost management in legal project management. Knowing that you can do a surgical and precise collection of data can cut down on processing costs. Escalera said tracking spending was a hot topic in the in-house realm. There is no perfect tool to track costs. One should confirm that vendors provide metrics. You'd want to know for example if your reviewers are reviewing too slowly. Vendor metrics should aligned, so the overall story can be told.

This is an outline of Class 5, 'The Supply Chain of Custody: Project and Process Management in the eDiscovery Workflow'. It is a discussion of this subject by Shari Aberle, a partner at Dorsey & Whitney LLP, Jessica Escalera, the Global Head of Legal Discovery Operations at Barclays, and Jack Thompson, the Senior Manager for Litigation Support at Sanofi, a French pharmaceutical company.

A. The Electronic Discovery Reference Model Process

Aberle described the EDRM as being widely used by companies to be efficient in the electronic discovery process. Escalera noted the EDRM is an iterative process, which begins with Information Governance, which is the most complex stage. There are a lot of different stakeholders in IG. The next stage Identification is then followed by Preservation - in each part of the EDRM the amount of data in reduced like a giant funnel. Data can either be preserved in place (such in email archives) or it can be collected, Collection is the next phase of the EDRM, following Preservation..

Aberle discussed Processing and Analysis. Analysis involves looking at summary information and key documents in order to make early decisions about case assessment. There will be a constant influx of data that will need to be analyzed. Escalera emphasized the iterative nature of the cycle between Processing, Analysis and Review. Review is when documents are marked as responsive, non-responsive, or privileged, is followed by Production. Aberle said that Production is not necessarily straightforward. Both parties need to be on the same page about what metadata will be produced and that ESI should produced as it is maintained in the usual course of business. Escalera said most cases hinge on a handful of documents. The process involves getting to those documents with the most efficiency and documenting the process.

Aberle said that authentication issues should be addressed early on.

B Work Production in the Discovery Process

Escalera worked at many law firms, and found that collection needed to be documented so it could be repeatable. A more mature organization should have a standard and repeatable process for collection. Different documentation should be used for each phase of the EDRM. The documentation should help explain how documents were culled out and why. The process must defensible.

Aberle said there was a need for a litigation readiness plan. There should be a data map indicating what is accessible and non-accessible. Team members can change over the course of litigation. Documenting the process will go a long way when you're five years into a litigation.

Thompson emphasized the need to have a skilled staff of people for the process.

C. Key Players and Skills in the EDRM Process

Escalera said that in IG, there are many different stakeholders, (IT, records departments, etc), In the Identification phase there are two stakeholders: the legal team and the business workers who know where documents are. The stakeholder shifts from being business oriented to legal focused as you move through the EDRM. Money is the universal stakeholder, and the Review phase in the most costly phase. Decisions must be made about which parts of the EDRM can be outsourced. There are four buckets to consider for out-sourcing. For the first, collection, if there is a large footprint, it should be performed in-house. The second part involves whether or not to use in-house subject matter experts. Such experts can provide guidance throughout the cycle. Putting SMEs on the team may entail people with technical skills, or involving lawyers. The last two groups to consider four outsourcing are technology and review. Review is difficult to in-source. It's an eyes on process.

Aberle said that both legal skills to develop a strategy, and also project management skills to improve efficiency are important considerations when building a team.

D. Legal Process Management

Aberle emphasized the need to explain to people the importance of the process, and how it will save the company money over time and protect the company's reputation.

Thompson observed that IT will focus on how data can be transferred between system but that other groups will have different priorities. Senior management, will just focus on the overall data collection..

Escalera said stakeholders must understand the basis of the process. The underpinning must be documented process management, which will help mitigate risk. Legal process management helps analyze costs and risks, and what is making electronic discovery expensive.

E. Integrating Legal Skills in Process Management

Thompson said that the first steps must be understanding what the cost drivers are and where data is located. There must be a good dialogue with IT that harnesses their knowledge of where data is. Facilitating communication is an important skill set.

Escalera said that lawyers are not often good project managers. When dealing with large data sets project management is important. Each involves asking how data is collected, and dealing with specific issues so the relevant data can be .

Thompson said that everything revolves around scope of process.

F. Monitoring Costs

Escalera said that managing costs is something that she and her senior keyholders are keyed into throughout the electronic discovery process. A case should be budgeted before the process is started. A model should be built to help predict costs. Some companies rely on templates and spreadsheets to manage the process and track the budget rather than relying on complex tools. Aberle acknowledged that there are complex tools to manage costs. She emphasized the importance of task coding. She also said that workflow technologies from knowledge management systems could be made use of.

G. Understanding the Data

Escalera said the best way to avoid errors was to understand the data before beginning. The more you understand your system, the better you can be downstream and not have to repeat work downstream.

Aberle said the legal team should be able to figure out what is accessible and what is non-accessible. Decisions should be made about the importance of certain types of metadata early on.

Thompson said that if you know a good percentage of data is cloud or SaaS based, costs will go down.

H. Identifying Process Experts.

Escalera discussed the problem of validating the process. It is a big mistake to assume that an IT person is the best person to explain the process in a deposition. If it is an IT person they need to know how to explain the legal process, and know that they should give facts and not guess at the answers for certain questions.

Aberle said that when identifying an expert about the process, she wanted to select someone who was able to speak the language of attorneys.

I. Tracking in a Discovery Plan

Escalera said that the more you can track the better off you will be. How decisions are made to include about what include for predictive coding, what Review manual is used, what QC is used for the Review process, should all be tracked. If you don't know what you were trying to do it's hard to quality check.

Thompson said legal hold notifications, collection notification, cases with similar issues, custodian interviews, a master data list should all be tracked in a discovery plan.

Aberle said that a discovery plan should track different sources of data in terms of what is accessible and inaccessible; when a hold was issued or re-issued, and who it was issued to; what steps were taken to process data; clawback / protective order issues; and chain of custody considerations.

J. Tracking Billing and Spend

Aberle recommended the use of task codes so the client can actually see in which areas its money was spent. It is an area her firm needs to improve on.

Thompson said there were opportunities available for cost management in legal project management. Knowing that you can do a surgical and precise collection of data can cut down on processing costs.

Escalera said tracking spending was a hot topic in the in-house realm. There is no perfect tool to track costs. One should confirm that vendors provide metrics. You'd want to know for example if your reviewers are reviewing too slowly. Vendor metrics should aligned, so the overall story can be told.