E-discovery landscapes vary widely between industries, within industries among competitors and even within corporate families. Unfortunately, expectations of defensibility, operational efficiency and best practices in e-discovery are not bound by corporate charters. Increasingly, expectations of operational maturity and e-discovery readiness are not limited by jurisdiction or venue. The growing expertise of the bench and bar now makes it imperative that corporate counsel manage an e-discovery readiness program that strategically leverages current best practices, innovative processes and new technologies against the corporate content-discovery life cycle.
In this first of six articles on corporate e-discovery readiness, we will provide context for and highlight the core components of an e-discovery roadmap.
A roadmap for corporate e-discovery readiness
Corporate e-discovery readiness cannot depend solely on litigation and regulatory history, on paths well-travelled and traditional technology. New technologies and aggressive discovery tactics offer the most seasoned e-discovery programs continuous opportunities for improvement. Many corporate counsel now find themselves in uncharted territory, responding to unprecedented numbers and new varieties of production requests against a massive and growing volume of diverse corporate data. They will implement preferred service provider programs and develop playbooks and tactical protocols to address discovery project requirements. Other counsel are having to explain the extreme financial consequence of ineffective records information management (RIM) and are now approaching information governance for discovery, building out business cases for prerequisites and seeking to change corporate cultures that have historically viewed unstructured data storage as an inexpensive alternative to managed archives.
In many corporations, annual strategic planning and capital investment cycles provide regular intervals for e-discovery readiness assessments and new initiatives. Corporate counsel is able to periodically reevaluate e-discovery processes and capabilities under the critical light of new precedent and rules, advances in technology and best practices among peers. And new directions for improvement can be defined and courses charted to establish and maintain e-discovery Readiness.
The e-discovery roadmap is a practical and work-product doctrine protected tool for process improvement when developed responsibly. It is a powerful visualization of current- and future-state processes and is invaluable in the education of stakeholders on the maturity of the program and the value proposition for change. On the roadmap, the process tasks that comprise the lifecycle of an e-discovery project are assigned to responsible stakeholders, mapped in milestones and measured against the goals the roadmap was designed to accomplish.
Ownership and assignments: Defining stakeholders and assigning ownership of the e-discovery readiness program is essential. With active, empowered business sponsorship, necessary decisions regarding resource allocations and priorities are quickly reached. Often e-discovery sponsorship is shared between Legal and IT, leveraging the strengths of each in the development of an actionable roadmap. Core and working team assignments are visually represented on the roadmap.
Privileged and protected work product: The assessment, creation and implementation of an e-discovery readiness program directed by counsel is protected work-product, proprietary and confidential to the business. Before launching a project to result in an e-discovery roadmap, attorneys should take appropriate steps to ensure all content is protected and distribution restricted to a need-to-know basis.
Strategic priority: A corporation must first define the business problem driving e-discovery strategy to guide the development and measures of success in the e-discovery Readiness Program. This strategic priority will provide the framework for an e-discovery Roadmap, which will likely be dependent on the charter of the sponsoring business unit and often change year-to-year as new opportunities emerge. For some, defensibility of legal process could be the primary driver. For others, operational efficiency, litigation expense or vendor risk management may be paramount. Or perhaps data security and protected content controls are of critical importance. Whatever the priority, those goals should be visually represented on the Roadmap and achievement should be measurable at each milestone.
Process outline and validation: The level of detail required in a first generation e-discovery roadmap will depend on the maturity of the program, as well as the immediate goals of the work product. The first step in creating any roadmap is to outline current processes through working team interviews, and then validate both current- and future-state visualizations with stakeholders in both legal and business who drive current e-discovery operations and technology.
Visualizations: The e-discovery roadmap is a variation of the common Six Sigma roadmap tool, which allows users to visualize workflow and better understand operational efficiencies and risk management opportunities. The DMAIC data-driven process improvement methodology is helpful in the evaluation of e-discovery process: define, measure, analyze, improve and control. Because an e-discovery roadmap reflects process maturity and opportunities at a certain point in time, the visualization should intuitively illustrate process workstreams, milestones and touchpoints in current- and future-state models. The ideal e-discovery roadmap will illustrate the results of a DMAIC process improvement exercise, through which current processes have been strategically redesigned.
- Workstreams: Organizations can define process workstreams differently, based on corporate organization, language, infrastructure and other factors. E-discovery workstreams are most often distinguished by process, by content storage media or primary workgroup.
- Milestones: On an e-discovery roadmap, milestones are measurable points of progress through the e-discovery project lifecycle and may also represent key decision events. Well-defined milestones are extremely effective at helping the team identify whether they have met performance goals and how or even whether to proceed on the current path.
- Touchpoints: Touchpoints are opportunities for content handling and process controls. Most large corporations that have the unfortunate benefit of long litigation histories likely have established internal touchpoints (core and working team) and have preferred provider programs in place for merits and discovery counsel, contract review counsel and discovery service providers. External points of contact should reflect a limited group of third parties that have been vetted by corporate data security and vendor procurement processes.
In the second part of our six-part series, we will examine the e-discovery project model within an e-discovery readiness program.