This is a second in a series of blog presentations about the need to apply business principles, particularly Business Process Management to eDiscovery Processes (Click here for related article). Again the legal profession appears to be somewhat late to the party recognizing the need for and defining the linkage between people, processes and technology. Every successful venture or enterprise is based on a defined process that assures that the proper procedures have been followed. This is true whether you are building a ship, writing an article, baking a cake or constructing a house. Each activity either follows a prescribed set of instructions or has customized a plan to fit the specific needs of a project. But they all take into account, people, process and technology.
What is Business Process Management
These same principles apply to business operations, and legal is primarily a specialized business operation. In the early nineties, “Reengineering the Corporation: A Manifesto for Business Revolution” was published. The major argument was that if businesses reengineered work processes and organizational structures, that huge increases in performance would be the result. Many businesses adopted this premise including financial reporting, manufacturing, procurement, software development and new product introduction. Most businesses and departments have processes that can be managed, measured, optimized and analyzed in this era of Big Data with advanced analytical tools.
For reasons not entirely clear to me, the legal field has been largely left behind in implementing business process management features. And nowhere is this more apparent than in the area of eDiscovery, whether it is on the enterprise level or within the law firm. While each litigation matter has unique circumstances, the vast majority of tasks and activities that are undertaken by staff are similar and repeatable. The problem is that the influence of the diametrically opposed forces of the often compressed litigation time frames leaving no time for proper planning. Additionally the often drawn out and lengthy time span of the entire case lead to the same thing: processes that are not followed or remembered because they are not written down in order to be implemented.
The Courts View
Courts are beginning to wrestle with how to apply newly defined FRCP rules (adopted in December 2015) regarding reasonableness, proportionality and cooperation in an eDiscovery world that is being transformed almost daily by mobile communication, social media, cloud storage and rapid advances in technology. One of the issues that attorneys are grappling with is that the process of project management is not something that most have dealt with before. It is not part of their legal syllabus. It is a new area of concern that is somewhat foreign to the practice of law. But there is help available in defining these processes which can be further enhanced by the right technology.
Practical Steps to Apply
There are a number of practical steps that can provide the foundation and roadmap for creating repeatable and defensible processes for use in eDiscovery. These can be developed by outside counsel in conjunction with internal staff to provide needed protections during litigation.
- It starts by asking the right questions and assembling a project team of stakeholders. Questions such as:
- What stakeholders are involved in eDiscovery activities in your firm? (IT, paralegals, attorneys, service providers, outside counsel, project managers)
- What are the roles of each stakeholder and how do they influence and interact with each other?
- Where does the data reside, what systems are included within the IT domain?
- Who are the Subject Matter Experts that will be needed?
- Is the data replicated and to what extent is data automatically deleted? Are there Information Governance procedures in place?
- What litigation hold processes are in place?
- What procedures are in place to manage information of past employees and their data?
- A detailed functional data map needs to be created and constantly updated. This identifies where data is stored by major topic areas, who is responsible for each data site and provides the road map to quickly identify data needed during particular litigation matters.
- Planning is important. The stakeholders identified in the first set of questions and their areas of responsibilities and roles in litigation must be understood by the legal team, before the discovery process begins. Given the cross responsibilities that exist and the distinct perspective and work culture differences that exist in different departments, best practices dictate that an eDiscovery response team be created with oversight over all the available areas of responsibility.
- The eDiscovery team should meet with all the key stakeholders and create detailed discovery plans for each substantive area. Each stakeholder will then clearly understands their obligations. Stakeholders should identify technology that can be used to control each are of responsibility and interact with other divisions.
- And finally, a repeatable and defensible workflow for managing evidence preservation, collection and processing will make costs and procedures predictable and easy to manage moving forward. Utilizing project management software and following workflow protocols that have been established before they are needed will make this job easier. And using eDiscovery software that has detailed Process Checklists that follow Best Practices is a further step in solidifying business practices and aligning legal practices with general business practices that already exist. This will go a long way to producing consistency and quality of work product by ensuring that each stakeholder fulfills their obligations. With software like Cavo eD deploying customizable project checklists, the eDiscovery process is fully documented throughout the eDiscovery life cycle.
- The last step in creating a defensible work process is to make sure that your legal team stays up to date with both rules changes and the court’s rulings regarding how those rules have been recently interpreted. The new rules have some fundamental changes that require improved cooperation and more restrictive eDiscovery requirements. Lawyers must adapt to these ever changing conditions in order to effectively represent their clients and adapt to current eDiscovery methods
eDiscovery has become more intricate and rules based and is often considered a separate area of law by firms. Learning to comply with and conform to these changes is enhanced when the proper procedures are put into place and followed by all stakeholders. It is long past time for the law to adopt general business principles regarding improved and measurable business procedures. eDiscovery needs the same organization, accountability and clear procedures that all successful projects require.