lean e-discovery: managing the e-discovery with leaner legal teams from review to redaction from igc...

Lean

e-Discovery:

Managing the e-Discovery

Process with Leaner Legal

Teams from Review to Redaction

By Gary Heath, CEO Informative Graphics Corp.

e-Discovery with Leaner Legal Teams IGC White Paper

Overview

At the end of 2008, 75% of law departments surveyed in the Altman Weil Flash Survey on Law

Department Cost Control said they were facing budget cuts in 2009. In fact, nearly one-third

reported that those cuts would include layoffs of support staff and attorneys. Today, many

departments are avoiding further legal team layoffs by doing more in-house, reports Altman

Weil’s James Wilber, a principal and senior law department consultant at the company.i

While this trend forces legal departments to take on larger roles, both to maximize limited

internal resources and to reduce their reliance on outside counsel, it underscores the

importance of an interdisciplinary team and effective project management. Organizations that

fail to incorporate those two critical factors are certain to further erode their talent pool and

ineffectively combat the cost crisis.

That crisis prompted an in-house lawyer to recently comment, “You can't sneeze in modern

litigation without spending a couple of million dollars.” Expenses have adversely impacted so

many organizations that the Association of Corporate Counsel started The Value Challenge

initiative to foster a cross-disciplinary discussion between in-house counsel and their law firm

counterparts about legal costs and alternative billing.ii The foundation for that campaign is

collaboration and a community-oriented approach to team-building.

The reason this is such a critical concern: the number of in-house lawyers is shrinking, but

legal departments are mandating that those who remain “insource” more of the discovery

process. While technology is a natural way to drive efficiencies, there is a perennial fear that

the work product will be substandard. Legal departments must find the right technology to

increase efficiency, speed processes and increase reliability.

At this watershed moment in legal history, corporate counsel must work better, faster and

cheaper. This white paper will identify proven methods for team-oriented lawyers to enhance

project management, streamline logistics, and incorporate technologies like electronic

redaction, which have a measurable and immediate return on investment.

1 ©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061


I. The Power of Project Management

With increased responsibilities falling on each remaining in-house employee, efficiency is a

key goal of corporate legal departments. Their teams are controlling costs by tightening

negotiation acquisition cycles, streamlining e-discovery and maximizing individual team

member contributions. To achieve these better, smarter, faster objectives, “Project

management takes on heightened importance,” says Allison L. Brecher, Senior Litigation

Counsel and Director of Information Management & Strategy for Marsh & McLennan

Companies.

“A shift has occurred in the past few years where in-house counsel are no longer just legal

advisors to their businesses: they become partners with them by offering advice on planned

service offerings and acquisitions. They now take a proactive role in anticipating compliance

or legal issues that arise from these transactions,” notes Brecher. By getting more actively

involved in processes, counsel can help keep timelines in check and budgets from running

amok.

The most significant return on this effort is in the execution of e-discovery. Savvy corporate

counsel know that delegation of document preservation to their technologists is no longer an

acceptable practice at the onset of litigation. “While certain tasks still can, and should be,

assigned to other corporate functions, the legal department should consider how it can be

involved in the process by making sure relevant employees receive, understand and comply

with legal hold notices and that IT and other business functions are involved in, and can

coordinate the process of, document preservation,” adds Brecher, who is the co-author with

Shawnna Childress of E-Discovery Plain and Simple. To do this, someone on the in-house

legal team must be intimately familiar with the company’s records management rules,

preservation mechanism, and possibly the key data holders around the company.

Those records must also be protected and their information safeguarded using the most

sophisticated redaction and privacy enhancing tools available in the marketplace. Flawed

redaction can result in privacy violations and data misgivings. Fortunately, these can often be

overcome with software that allows producers to shield sensitive information.



Also, although court deadlines guide the process, in-house project managers no longer have

the luxury of allowing an external arbiter to dictate internal operations. Accelerated timeframes,

increased supervision and budgetary pressures have completely changed the operational

paradigm. Those who fail to adapt are likely to experience macro-level deficiencies. “Good

project management isn't a skill taught in law school, but instead it’s careful planning, with

attention paid at the start of the case to an overall litigation strategy,” observes Brecher.

“Making early case assessments can help counsel decide on the most effective way to present

the claims or defenses in the litigation.”

A. Internal Review Is Essential for External Impact

Once an organization designates a strong project supervisor, its teams can control more of the

review process internally. That control permits greater data reduction, which optimizes cost-

cutting. Once the team finalizes the data set and fully outlines the scope of the project it can

determine which tasks to outsource by size and complexity, reserving more complicated

matters for internal staff.

Those who execute in this fashion achieve commensurate results. Vincent Miraglia, Senior

Counsel for Information Technology at International Paper, explains how his team successfully

maintains control during discovery. “If opposing counsel will not agree to limit discovery

appropriately, we will attempt to use a phased approach to discovery,” he notes. A phased

approach reveals the universe of documents under consideration to an adversary, but allows

the organization to better control the pace at which production is necessary. It also permits

wider latitude in later phases of discovery.

When outsourcing tasks, seamless communication with temporary attorneys is critical to the

success of the project. “Whether discovery is being managed in-house or outside, it is vital to

provide clear and concise direction to those who are reviewing documents,” adds Miraglia.

Attentive management of this type yields fewer mistakes, reduced confusion and, of course,

lower costs.



B. Manage Expectations with Regulated Reporting or Risk Discontent

Whether it is weekly meetings, daily email reports, or more ad hoc methods, supervisors will

only succeed if they communicate expectations and quickly respond to subordinate inquiries.

“Proactive supervision and clear communication to the entire group will reduce the number of

recurrent issues going forward,” highlights Miraglia.

The recent settlement of the patent and antitrust matters in which Qualcomm will pay

Broadcom $891 million over four years has been attributed to the ability of the new chief legal

officers at each company to speak with one another, and to encourage their outside counsel to

do the same.iii Collaborative communication is the hallmark of successful legal teams.

C. Encourage Reasonableness or Endure the Unreasonable

Gone are the days where each side tries to hide everything possible from the other. The more

cooperative the teams, the smoother the process will be. Agree on areas of privilege and

relevance, and then redact what is necessary to conceal. The agreement and redaction steps

are often undervalued and occasionally overlooked. Attentiveness to this point, however, can

mean the difference between cooperation and combat. The sooner the parties agree on

relevance and scope, the more time they will have to ensure the critical information is properly

protected.

The most talented directors encourage reasonableness both to their internal staff, as well as

externally to their adversaries. They do so by highlighting to their organization that minimal

controls in creating, storing and destroying documents will have a tremendous impact on

electronic discovery in future matters. In the infamous Zubulake v. UBS Warburg, Judge

Scheindlin held that the failure by UBS to properly communicate document obligations with its

employees resulted in the noncompliance that warranted severe sanctions.iv That failure or

inability to relay important obligations continues to have repercussions in a broad range of

matters.v

Self-directed discipline, particularly as it relates to corporate data destruction policies, will

reduce cost and increase an organization’s ability to locate data and respond cost-effectively

to a request for information.vi It will also encourage greater internal compliance and generate



goodwill with adversaries who will perceive an atmosphere of good faith and professionalism.

This relationship will often translate into agreements relating to discovery deadlines and

flexibility in the evaluation of legacy data, among other allowances.

D. Create Lean, Effective Teams to Ward Off Proposed Layoffs

Proper staffing is an essential component of seamless discovery operations. In the current

market, there is a need to continuously justify the size of the legal team to combat potential

layoffs. In buoyant economic times, non-essential staff members may be reallocated during

slower periods; however, in a protracted recession, those individuals are often terminated.

Their duties are reassigned and the pressure to increase efficiency only grows.

To avoid this cycle, maintain lean support clusters, and routinely identify the contributions of

each member. For teams that have already clearly defined a project manager, examine

processes as recommended to identify which tasks should remain in-house and what can be

outsourced. Ensure team members have a solid understanding of their company’s document

retention and destruction policies (and how to effectively put them on hold). If the project

manager has a strong handle on team member contributions, it will be much easier to justify

the role and importance of each member.

If you have support staff members that are not currently involved in a task, consider focusing

their efforts on risk-aversion and liability issues, including compliance concerns, to help save

money in the future. Create a team focused strictly on process improvement, with a particular

eye on how to better interface with other groups around the company, such as finance and

accounting, IT, product managers, and data holders. This not only increases team member

visibility within the organization, it offers a collective best practice in an environment where

highlighting staff output is essential for job security.

II. Logistics

Once legal teams are established, leaders of those groups must define routines in which they

can operate and thrive. From conference room reservations to document workflow, effective

early case assessment, review and processing are more complex in periods of austerity. They

are also becoming part of the fabric of basic discovery in modern disputes.



A. Use Internal Resources

The trend that started with in-house legal departments using their own facilities and equipment

for document reviews has evolved into an assumption by the client of the overall discovery

model. Of course, the level of control depends on the case. Organizations have learned that

by streamlining procedures in a familiar setting, the cost of supervision decreases while the

effectiveness of that supervision increases, highlights Miraglia. “On some cases, we have

used the same temporary reviewers,” he says, speeding cycles by working with outsourced

staff that is already familiar with their methodology, team and overall approach.

His team maintains continuity and cohesion by centralizing operations in its corporate offices

for a few weeks so that they can develop a unified work style, comfortably discuss key issues,

and report questions or concerns instantly. Efficiency grows with time and as the process

advances, an organization may feel confident enough in the work product to allow contractors

to work remotely, which further reduces the cost. This comfort level grows when it establishes

proper protocols to protect sensitive data using advanced redaction capabilities.

B. Demand Clear Billing

Given the reduced demand and increased supply from outside counsel, in-house teams have

more power to demand accountability for the legal services they receive. In a down market,

outsourced law firms prefer to control the low-value yet high-margin processes, but the

preference is shifting. “I think there is a sea of change coming in which firms that can get in

front of the wave and figure out ways to add their secret sauce without needing a large

leverage ratio of lower value tasks to make their numbers … [those firms] are going to win,”

predicts Jay Brudz, Senior Counsel for Legal Technology at General Electric.

Corporate counsel can dramatically improve their cost management by demanding clear bills

and direct pricing for specified services from outside firms and vendors. As the legal

community fully migrates to an electronic billing atmosphere with automated accounts payable

integration, in-house lawyers play the role of “receiver,” says Brudz. “We have controllership

responsibilities for determining if what we are paying for was actually delivered,” he adds.

“You need a clear invoice to be able to tell if you got what you are being billed for.”



Brudz highlights that an invoice is a significant means of communication between clients and

their attorneys. “Outside lawyers should spend just as much time creating that invoice and

making sure it tells the right story as they do in any opinion memo they send me,” he

recommends. Detailed billing often encourages the sender to evaluate the work performed

and independently determine its worth to the client.

III. Technology

Legal teams are well aware that there are varying numbers quantifying the electronic data

discovery (EDD) market for software and services. The Sixth Annual Socha-Gelbmann

Electronic Discovery Survey placed the amount at approximately $3.3 billion in 2008vii to over

$4.8 billion by 2011.viii Many also calculate the total for attorney review at multiples of that

amount, raising the associated EDD cost by tens of billions of dollars. Some of those billions

are wasted, since 90% of documents turn out to be irrelevant.ix The opportunity cost of

inefficiency is staggering, so finding the right combination of technology to review, analyze,

and protect documents and data is critical.

The key to harnessing positive results is to fight the fear of spending with metrics that

determine the return on investment (ROI). Forward-thinking organizations are driving ROI

through the use of technologies that offer immediate and impactful results. Technology

purchases such as case management software and review platforms are among the most

common but their impact can be difficult to quantify; however, there are tools that demonstrate

their value almost immediately.

In the new model of corporate counsel oversight on spending, the ROI for technology needs to

be very fast, says Alexandra G. Buck, Director and Senior Counsel E-Discovery & Records

Management for Abbott Laboratories. Just how fast does the ROI need to be realized?

According to Buck, “Six months tops,” which means the project managers have little room for

ramp-up and execution.



A. Maximize Culling

The culling process begins with a refined workflow which allows support teams to assign and

collaborate on a series of tasks, then track their status through completion.x This becomes

very important on large review projects with widely distributed review personnel.

The tools include analytics software that can produce reports and other visuals that enable

reviewers to identify relationships between documents. They increase the speed and

accuracy of review. Also helpful are features that calculate the frequency of certain terms and

words in a data set. This is important for reviewing email threads, identifying connections

between the recipients and studying timelines.xi That frequency can reveal new areas of

substantive focus for a particular case or help to validate an existing position.

Ultimately, these tools filter out irrelevant information. This filtering process reduces the

overall haystack to a more manageable number of files. It also allows legal analysts to access

key documents much earlier in the action. The impact is both to lower costs and to increase

the likelihood of a beneficial result.xii

B. Electronic Redaction

Project supervisors will fail unless they recognize that technology tools, such as redaction

software, protect valuable information and almost immediately demonstrate their ROI value.

The traditional method of redacting by using black markers and photocopiers is time

consuming, labor intensive and prone to error. In direct contrast to traditional redaction

methods, there are affordable electronic alternatives that enhance the efficiency of the entire

process. Redaction software offering intelligent pattern matching (for things like Social

Security or account numbers), text search and verification and review features can decrease

the risk of accidental disclosure and eliminate days or even weeks from the total discovery

cycle.

Corporate counsel should be aware that a 2008 study revealed that 74% of U.S. law firms

surveyed still perform redaction manually while only 44 percent employ technology to protect

privileged information.xiii Organizations that incorporate and master the use of electronic tools

have a distinct advantage, and are likely to receive favorable pricing from their outside counsel.



It is the responsibility of the project manager to understand these advantages and negotiate

with outside counsel for proper credit to the company.

C. Manage Your Data Properly

Given the speed at which decisions are being made and the criteria on which they are judged,

long-term document management is critical. Organizations are increasingly focused on

incorporating best practices much earlier in the process. The economy has also forced

individuals responsible for different aspects of litigation to maintain ownership of their task

throughout the life of the matter.

How a firm applies document management technologies depends on the culture of the

organization and its litigation readiness quotient; however, neither eliminates the need for such

application. Those that prepare for an occasional lawsuit are likely to consider issues that are

different from a company involved in serial litigation. And while each has a unique identity,

there is a universal shift in the dynamic of internal legal departments. They are recalibrating

their efforts to accomplish more with less by streamlining their operations and building

efficiencies. Modified project management and new technology are creating opportunity in the

economic crisis. And, individuals who embrace this new era will thrive and more effectively

manage their overall responsibilities.

D. The Paradigm Shift

The legal community is at a watershed moment in its history. The chaos in the global

economy has forced corporations to reevaluate their litigation expenses and prompted a shift

in the way that lawyers provide legal services. That shift is both practical and cultural. There

is a renewed emphasis on fundamental technology to protect and manage data that impacts a

matter from the outset to its conclusion. There is also a strong focus on the efficiency of

cross-disciplinary collaboration. In-house counsel who embrace this new model will be able to

sneeze freely without spending unnecessary money, and they will streamline their operations

and chances for success in the process.



About the Author

Gary Heath is CEO of Informative Graphics, a leading developer of

commercial software products for content visualization, secure

publishing and collaboration. Founded in 1990, Informative

Graphics products are deployed by thousands of corporations

worldwide.

i Barbara Rose, In-house Is No Haven, ABA Journal (June 2009). ii http://www.acc.com/advocacy/valuechallenge/index.cfm. iii Zusha Elinson, Chip Makers' $891 Million Settlement Infused by New Blood, The Recorder (April 30, 2009). iv Zubulake v. UBS Warburg LLC, 229 FRD 422 (S.D.N.Y. 2004). v John J. Coughlin, Lessons Learned From Observing E-Discovery Errors, The National Law Journal (September 22, 2008). vi See, Greg Saikin and Sarah Tubbs, Grand Jury Subpoenas Require Careful Response, Texas Lawyer (October 07, 2008). vii George Socha & Tom Gelbmann, A Look at the 2008 Socha-Gelbmann Survey, Law Technology News (August 11, 2008). viii Barry Murphy, Believe It — e-Discovery Technology Spending To Top $4.8 Billion By 2011, Forrester Research (December 11, 2006). ix Brett Burney, Subdue the Costs of Document Review, Law.com (June 23, 2008). x Michael C. Lynch, Guy Wiggins and Conor S. Harris, Cutting-Edge Tools to Help Streamline EDD, New York Law Journal (November 4, 2008). xi Id. xii See, Martin Mayne, Keys to Planning Effective Document Review, Texas Lawyer (April 9, 2009). xiii http://www.infograph.com/press/LawFirmSurvey.htm


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lean e-discovery: managing the e-discovery with leaner legal teams from review to redaction from igc...

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