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We open with the premise that everyone balancing family and work has developed a method that works for them (even if we sometimes find ourselves in survival mode). Whether you are managing a team, baking a cake or finding productive activities to keep everyone going, the strategy we employ becomes our recipe for success. How we establish processes for consistent legal department results in litigation and investigations is not an apple that falls far from that tree.

Our last article continued the discussion on finding a balance between technology and effective legal project management in various business-use cases (the first of which can be referenced here). In this final article of the series, we explore the recipe for success for achieving consistent legal department results.

Measure Twice, Cut Once

In "Getting the Right Cooks in the Kitchen," we established a basis to determine who's required on the team and what roles they should play in effectively managing legal projects for investigations and litigation. Now let's dig deeper and turn those roles into solid processes evolving with a changing landscape.

What does a playbook for litigation and investigation readiness/response look like?  Best practices should address both internal and external team responsibilities and the processes that govern workflow. While the "playbook" can vary by organization certain aspects are a constant, beginning with codifying roles, responsibilities and key players.

 

 

 

Overarching Themes:

• Company approvals: Must be solicited, confirmed, and documented for critical decision points. Clear communication protocol and standardized new matter intake will be crucial in achieving oversight and approval from the CO's global discovery management team (GDMT).

• Consultative approach: Establish the company's objectives and leverage team knowledge to determine and execute the best possible approach. Ongoing team training and open lines of information sharing will be key.

• Risk mitigation and cost optimization: Focus on creating a repeatable, defensible, and cost-efficient process. Early wins here are key to ensuring seamless change management and ongoing stakeholder buy-in.

• Process adherence and innovation: Documentation of best practices and standardized workflows should be formalized to ensure consistency. Deviations from these processes should be documented and reviewed as part of ongoing workflow optimization.

• Accountability and auditability: Create a culture of accountability by establishing measurement criteria for individuals in e-discovery roles, creating audit protocols for assessment of the e-discovery process, and assigning members of the GDMT to oversee and enforce program best practices.

Boiling It Down

Next comes data collection considerations. The traditional method is to perform full forensic collections via internal IT teams, law firms, or third parties. This can result in a significant rise in data volumes translating to increased costs. Utilizing collection methodologies in concert with experts for more targeted, search-at-source collections can drive efficiency. By focusing on a custodian's specific directories and repositories, relevant to the litigation timeframe, clients will be able to decrease the overall volume of records.

Although data processing by itself is not the biggest driver of e-discovery spend, decisions made here can significantly impact downstream review costs. Data reduction through technology and process-driven culling can make a considerable impact. Traditional culling tools and methodologies yield, on average, a 25-30% data promotion rate.  Data reduction through technology and process-driven culling, on the other hand, can yield an average promotion rate of only 5% in many instances, which translates into significant cost savings on both hosting and review costs.

In terms of the playbook, codifying an efficient data collection approach fits within our new matter initiation (NMI) process (inclusive of a scoping call to determine matter specifics/potential conflicts, data collection plan, ingestion/processing, use of ECA/analytics, hosting and production specifications). Post the NMI process, we can determine what the review plan should look like, from protocol to team selection/scaling (TLSPs are frequently the cost/process effective choice here) to privilege/redactions.

Next comes the review process and protocols. Here, it is advisable to build out a detailed process map for intelligent batching and the use of: technology accelerators, training, calibration, quality control, reasonable OC supervision, substantive validations, decision log and status reporting for both first pass review for responsiveness to redactions through privilege review, and log creation/maintenance. A comprehensive approach to review is highly advisable given that these checks and balances most frequently precede document production to a counterparty. Turning this over to outside counsel that does not benefit from both technology and legal services may reduce your ability to govern critical process efficiencies and spend reduction.

Key Performance Indicators (KPIs)

Simply tracking hosting and review costs alone does not get to the heart of the quest for process efficiency and spend reduction. We must analyze how we get there and where the value lies.

Companies routinely have repeat custodians across litigations yet are not positioned to reuse that data or work product. This results in significantly increased data processing and hosting, and longer review hours. By tracking and standardizing a process for these custodians, companies are able to save external costs and time by eliminating recollection and reprocessing work for each individual data custodian.

By implementing program-level tracking to determine the potential custodians for data reuse, documents can be identified which can be repurposed across cases. Data reuse focuses on only bringing over relevant records, significantly cutting down on review spend, and increasing the case's overall relevancy rate.

Document review speed is also one of the most important performance factors in e-discovery spend. The industry sees average review speeds of 35 to 40 documents per hour. By integrating analytics, technology, and other workflows that drive efficiency, companies can see review speeds in excess of 70 documents per hour. Technology and legal service providers can bring these efficiencies to bear by utilizing propriety workflows such as Search Hit Only and Single Instance Review in combination with current technologies like Continuous Active Learning. These can maximize review speed and lower review cost while maintaining a high-quality work product.

Having global legal resources available, inclusive of onshore and offshore managed document review, enables discovery to function around-the-clock to meet challenging deadlines. It also allows companies to take advantage of competitive local rates for cost reduction.

Following the Protocol

Once we establish the necessary components of the playbook, they should become a living set of protocols matching the landscape of business needs which govern litigation and investigation readiness and response. Revisiting and modifying these standards as needed, and at regular intervals, ensures the playbook remains in lockstep with the business and its evolving landscape.

Exceptions to playbook protocol should be documented and fall within specified parameters for any deviation. By doing this, we avoid being overly confined by any process technology or approach that changes over time, while maintaining a consistent set of practices.

Next Steps

Achieving consistent legal department results is an exercise which requires a well thought out playbook. This playbook should become the go-to standards by which everyone involved on legal projects operate, including internal legal/IT teams, external service providers, and outside counsel alike. By establishing the required processes and governance of workflows, we create a clear path for success in terms of consistent results and reduced spend for litigation and investigation portfolios.

Dan Panitz, UnitedLex, SVP, Strategic Accounts, is an experienced attorney based in New York with more than 25 years of combined legal, technology and corporate advisory experience. Having worked with SEC Enforcement and NASD (now FINRA) Arbitration, Panitz also holds Anti-Bribery & Corruption specialty certifications for the PRC, U.K. and the United States.

H. Bruce (HB) Gordon, CEDS, EnCE, is the manager of e-iscovery in the Office of the General Counsel for The Vanguard Group. Gordon's career spans over 20 years of ESI response management and as an IT Manager/Liaison to legal departments including Teva Pharmaceuticals, AmerisourceBergen Corp. and the Rohm and Haas Co.