I recently collaborated with my colleague Amy Hinzmann on an article for the American Bar Association Securities Litigation Section Newsletter, titled Dispelling E-Discovery Myths in Internal and Government Investigations. Amy leads the managed document review offering at DiscoverReady, and in that role she leverages her experience as a securities litigator, both in private practice and as in-house counsel for Merrill Lynch. In her article, Amy uses a hypothetical e-discovery project as a teaching tool to help junior-level litigators better understand how to execute a high-volume, quick-turn e-discovery project, and to accomplish the work on time, at a reasonable cost, and with high quality. If you’re a member of the Securities Litigation Section you can access the full newsletter here; if not, feel free to download a copy of Amy’s article here.
Although the article focuses on the type of e-discovery project typical in government and internal investigations, several of the “myths” Amy examines are likely to surface in any type of e-discovery matter. So I thought it would be useful to set out some of those myths here in the blog, along with Amy’s reality-based advice to dispel them. If you’re a junior lawyer – or simply inexperienced with e-discovery projects – please read on. . .
Myth #1: Any law firm associate has the skill set and knowledge to manage an e-discovery project – after all, they are experts with their laptops, smartphones, the firm’s electronic timekeeping systems . . .
Reality #1: Regardless of seniority or expertise with day-to-day technology, all lawyers need help understanding e-discovery best practices, and can only gain e-discovery experience by handling matters over time.
So what does an inexperienced attorney do when handed an e-discovery project to manage? First, “know what you don’t know.” Ask for help. That help can come from more experienced lawyers in your firm, the litigation support group at the firm, or from a trusted service provider (more on finding one of those later). Second, draw on the good project management skills you developed working on other types of matters. Identify all the stakeholders in the project, and define everyone’s roles. Establish a protocol for communication. Document all decisions about the project. Finally, don’t be afraid to get your hands dirty. This project will likely require you to use new software and understand cryptic technical jargon. Get ready to dig in and work hard – you will not succeed if you over-delegate work to more junior associates, contract lawyers, paralegals, and/or litigation support staff.
Myth #2: All e-discovery vendors are the same.
Reality #2: The fact is, like any service company, e-discovery vendors have varying levels of expertise and experience. You must establish a relationship of trust and clear communication with your e-discovery vendor for your project to succeed.
Here are a few tips on vetting an e-discovery provider:
- What does a “typical” project look like? This is a bit of a trick question – there is no “typical” project. The most credible response from a provider will emphasize that every matter starts with a documented, defensible process. Even “typical” matters encounter problems, but a documented process can help determine what went wrong and why – which is critical if an opposing party questions your production.
- How does the vendor staff their cases? You should come away with a full understanding of who will be staffed on your project. What is each person’s role, and what is their background and experience? Who will be your main point of contact, and how is that person the right “fit” for the matter?
- What is the provider’s review tool of choice? Beware of vendors who have one proprietary tool that you must use. “One size fits all” is not a successful model for e-discovery. Look for a company that leverages best-of-breed technologies to achieve the results you want. Your vendor should listen to your needs, and understand your comfort level and sophistication with different tools. They should be able to accommodate your request for a specific technology, or alternatively, recommend a new technology and offer training on the tool for you and your team.
- Ask for references. E-discovery vendors rely heavily on word of mouth referrals. Email your firm’s litigation support team and/or litigation team when vetting a new vendor. But keep in mind that people are more likely to give negative feedback than positive, so also request references from the vendor and give them an opportunity to introduce you to clients who have had good experiences. Recognize that e-discovery is an inherently imperfect process, and seek preparedness, reliability, and accountability – not perfection.
Keep in mind that you should follow the same rules when you vet internal litigation support that may be available to you. Not every member of that team has the skills to handle every matter – make sure your project is staffed appropriately.
Myth #3: When faced with large volumes of documents to review, “throwing bodies” at the project will help you meet your deadlines.
Reality #3: Good project management, including a thoughtful scoping of the project and the resources required to accomplish the work, will enable you to meet document review deadlines.
- Start at the end. At the outset of your project, have a frank discussion with your vendor about the deadline for completion. Be honest about the nature of your deadline: Is it self-imposed? Is the deadline negotiable, so that you can add additional time if you encounter unexpected issues? Or is it a hard deadline imposed by a court or government agency? If “substantial completion” is required by the deadline, define what that means. Does a deadline for “production” mean that responsive documents must be provided by that date, and a privilege log can be turned over later? Or must the privilege log also be supplied by the deadline?
- When you’re done, you’re not done. Remember that even when document review is finished, you are not done – you must build in time for preparing the production, which often can require several days of work. At the beginning of the project, discuss with your vendor the required production format and other necessary deliverables.
- Before you begin review, develop the substantive strategy. Rushing into document review without a strategy in place will result in inefficiency and poor quality down the line. Before you start, consider carefully what you are trying to accomplish with the review. What documents are you looking for? Establish the “story” of the case, including relevant dates, parties and underlying facts. Memorialize your strategy in a concise memorandum. Provide other study guides to the review team if needed – for instance, if a complex contract is at issue, ask the business unit for a summary of how the agreement is structured. What are likely to be the “close calls” separating responsive from non-responsive documents? Are there examples you can provide the review team?
- Once you understand the strategy, then define the workflow. After the strategy is developed, then you can structure a process to implement it. What decisions will the reviewers be making about each document? Will you have confidentiality and privilege coding? Will you require a second level review for redactions? How will you provide substantive feedback to the review team? What is the Quality Assurance protocol? Rely heavily on your vendor for help with the workflow creation – that’s why you hired them.
- Bigger is (Usually) not Better. Consistent with your deadline requirements, keep the review team as small as possible. You can always adjust the number of reviewers after you assess the team’s throughput. But smaller teams typically produce more consistent and accurate decisions. The larger the team, the harder it is to effectively supervise the reviewers, provide them with feedback, and keep tight control on the quality and consistency.
In e-discovery, throwing bodies at the project without proper planning will waste time and money. You might as well set your client’s money – and your client relationship – on fire. And that approach also carries a substantial risk of serious mistakes, further jeopardizing your professional reputation and your client’s confidence in your work.
Myth #4: Using predictive coding or other forms of technology assisted review (“TAR”) will significantly reduce your project timeline.
Reality #4: As powerful as these TAR tools are, they will not necessarily save time (or money) in every case.
A few things to keep in mind about using TAR for a document review project:
- TAR software does not operate with the quick press of a button. These tools require significant substantive input from attorneys knowledgeable about the case to “train” the system on what is relevant. Just as with manual human review, the process and workflow must be developed and defined. The results of these tools are only as good as the planning and input that goes into them – the classic example of “garbage in, garbage out.”
- TAR isn’t effective for every document collection. These software tools rely on an algorithmic analysis of document text. If your document collection is heavy with non-text documents – numeric spreadsheets, for example – the technology will not provide good results. Also, the tools need a minimum quantity of relevant content to “learn” from – if you’re looking for one needle in a haystack, TAR is not a good option to find the needle.
- Use technology to improve human review, rather than replace it. Even if you decide that you will stick with old-fashioned human review for your matter, consider using technology assisted review in other ways to improve your project. For instance, the technology can be used to prioritize review, so that the documents most likely to be relevant are reviewed first.
Technology should be implemented when it can make the project easier, quicker, and more accurate – not solely for the sake of using it.
Hopefully this examination of some of the “myths” of e-discovery will help you to better plan and execute your next significant document review and production. As unglamorous and tedious as this work can be, it is critical to get it right and get it done on time.