A modern e-discovery readiness program relies upon written policies, processes, procedures and guidelines to promote predictability, consistency and measurability. Written governance increases efficiency and defensibility when infused into the design of a discovery model, while decreasing costs and eliminating wasteful redundancies. The fourth of a six-part series, Part 1, Part 2 and Part 3 can also be found on InsideCounsel.com.
E-discovery as a practice area has increasingly specialized in the effort to keep up with advancements in business and communication technologies. Vendors herald breakthroughs in document processing virtually daily. Courts are constantly tweaking existing law to apply to new situations. Federal and state discovery rules are regularly under review for possible amendment. Even legal ethics now require lawyers to develop familiarity with relevant technologies that may affect their clients.
Corporate legal departments have similarly specialized to adapt to the intense growth of e-discovery. It is common now to find internal legal and technology teams singularly devoted to the practice. Centralization has become the hallmark of e-discovery modernization. Few in-house organizations still maintain the old, decentralized model where small teams ran all aspects of e-discovery on a case-by-case basis.
One-off teams most often existed in deadline-prone, pressure cooker litigation environments, forcing them to become good at making on-the-fly, ad hoc, decisions about technology acquisition, processing protocols and vendor retention. While effective and necessary to address case-specific emergencies, the inherent compartmentalization of one-off teams proved to be inefficient and expensive to maintain.
Decentralized teams rarely communicated with one another even though they were employed by the same company and pulling records from the same information systems. Walled-off from each other, these case-specific teams did not have the advantage of shared technology, they could not reuse data generated by one for the advantage of the other, and they generally did not join forces to create superior bargaining power in order to leverage better vendor pricing.
Today’s modern corporate e-discovery team, on the other hand, is centralized and under the leadership of specially trained lawyers and technicians. Guidance emanates from a single steering committee that responds to the company’s entire litigation portfolio. Policies, processes and procedures are written with the collective goal to comply with the organization’s legal obligation to reasonably and proportionally preserve and produce discoverable information; through processes that can be successfully defended in court if and as necessary; and by means that are efficient and economical across the entire organizational spectrum. Written governance around the e-discovery process makes it imminently more likely that this three-part goal will be achieved. This governance is documented in a variety of forms, including playbooks, protocols, specifications, notebooks and palettes.
- An e-discovery project model playbook serves as the master consolidated set of documentation available for use in an e-discovery project. The playbook consists of material for each stage of a project lifecycle both internal (e.g., inventory, preservation, early case assessment, scope refinement, cost allocation, collection, pre-processing) and external (e.g., processing, culling, search and retrieval, review and production). Defining a master playbook template in advance will aid in the assembly of the corporate standard documentation across providers, as well as provide continuity in iterative projects at any single provider.
- Enterprise e-discovery protocols provide the framework and guidelines for the delivery of services and, of course, are tailored to address the needs of projects and the stakeholders of the e-discovery readiness program. Protocols describe what will be done relative to a defined aspect of the e-discovery lifecycle. Examples of global protocols may include: Protocol for Incident Management (e.g., communication of issues), Protocol for Quality Control of Productions, and Protocol for the Identification & Management of Protected Content. Protocols may incorporate and reference specific supporting processes, workflows, templates or procedures for activities. Processes, workflows, procedures and templates document how a specific activity will be accomplished.
- Specifications are the documentation of technical requirements for specific tasks. Examples of specifications may include: Standard Specification for Productions, Specification for Quality Control of Productions and Specification for the De-Duplication of Data.
- Document review notebooks are project-centric documentation of the process to be employed to review documents and considerations to be made when deciding which documents are relevant to the issues of the case. Similarly, project management notebooks are specific to a project and serve as the documentation of the requirements, the decisions make throughout the course of the project and memorialization of the details relating to the production of documents.
- “Coding palettes” are specific tag lists that are available to be applied to documents during the course of the review (e.g., responsive, non-responsive, privileged, issue tags, etc.). It is helpful to define a standard palette for basic coding to be used across all cases. By doing so, the service provider will be able to analyze the decisions across cases and provide meaningful metrics to evolve the program. Inconsistent coding palettes can inhibit the cross-project analysis and diminish the benefit of consolidating projects with a service provider.
While each service provider may have pre-established tools and documentation to support delivering services, it’s important that the corporate client define the standards for the documentation, the metrics that need to be captured and reported in order to measure performance, manage risk and support continued business cases for the e-discovery readiness program.
The next article in this series will discuss the products that support a corporate e-discovery readiness program and share ideas to create a matrix to support the selection of appropriate products for deployment on specific e-discovery projects.