I recently met with a client who shared—vented really—how woefully unsuccessful she has been in securing a competent e-discovery vendor. A number of recent matters were fraught with disappointing vendor oversights. Most were due to poor communications.
Take, for example, status reports. In one case—a high-level, high-stress project that involved collecting a data from 30 custodians within 48 hours—there was essentially no communication from the vendor. At the end of the first day the firm had no idea where the project stood.
In another, the vendor’s project manager dutifully sent email updates with lengthy discussions on each custodian, including the computer location, how the data that was secured and where the copied data was stored. That was way too much information. Reading through pages and pages of text to ascertain where the project stood was time-consuming and stressful. A simple, easy-to-read spreadsheet would have sufficed.
Finally, in a case that last lasted 18 months, the vendor’s project manager changed three times. The client had to update and essentially retrain a new project manager every six months.
In each instance the client paid a premium rate for project management services and felt she didn’t get what she paid for. It was, she concluded, the old death by 1,000 paper cuts storyline.
We’ve all heard stories like these or, even worse, experienced them firsthand. It would be nice if the world of e-discovery was built around a science and challenges like these could be solved in a quantitative fashion. Unfortunately, it is more of an art form.
An effective project management plan must be established before the project is underway and include real-time communications. This may seem like common sense, but it’s often forgotten in the heat of battle. Here are some recommendations:
- Focus on what you need
Make vetting the project manager’s background part of your due diligence. If it’s a Foreign Corrupt Practices Act case in Asia, ask the project manager about his experience in foreign countries and how he deals with the laws that impact shipping electronically stored information out of the country. Ask whether there will be time zone issues and if so, how he intends to deal with them. Ensure that the project manager understands what’s expected of him at the outset so you can resolve any potential conflicts beforehand.
- Look for Six Sigma/PMP certification
If your firm or company employs Six Sigma and/or PMP metrics, working with a project manager certified in these skill sets ensures the vendor will follow the same standardized project management processes you do. That, in turn, can enhance project communications right from the get-go.
- Discuss the case
When interviewing vendors, discussing the case strategy will help you separate the “order takers” from the “collaborators.” The project manager is the vendor’s point guard, so she needs to understand the case and what you hope to achieve. You want a collaborator.
The circumstances surrounding a complicated 18 to 24 month case will likely change, so it’s important that she understand your objectives at the outset. Tell the vendor where you expect to be at various points in time and be sure it knows in advance that if there’s a problem that could keep you from hitting a certain mark, you expect to hear about it well before that date.
- Establish clear communications guidelines
Make sure the vendor knows how (and how often) you want project updates. I had one client tell me the senior partner needed only bullet points demonstrating where the project stood. An associate, on the other hand, needed much more detail, such as the number of corrupted documents we had found and the number of custodians who still hadn’t responded to the legal hold order.
I recommend the traffic light approach. If a certain task—say notifying custodians—is proceeding as planned, it gets a green light. If a few custodians still haven’t responded, a yellow. If a few key custodians are not cooperating—and that could affect a critical deadline—it gets a red. A partner may get upset, there may be some yelling, but in the end you avert major problems.
- Ensure meaningful collaboration
The e-discovery process is fraught with challenges. When a major issue arises, the client-vendor relationship has to be strong. You may be dealing with a variety of documents, and some may be reviewed in a different manner. Some files will be password-protected, while others will be corrupted, all of which affects the way (and how quickly) the documents are reviewed.
If the vendor only has two days to gather the data, it must keep the client informed via real-time communications. That requires a strong, collaborative effort involving both the client and the vendor. Addressing as many details as possible before e-discovery begins will minimize communications problems and reduce the stress of an already intense situation.