Approaching Discovery as a Strategic Business Process

But discovery doesn't need to be just another event-based activity. It instead can ' and should ' be approached instead as a proactive, repeatable and managed data management process. Crises cost. Process saves.

Data Deluge and'Downstream Effects

As far back as 2002, the world had already consumed one billion personal computers ' about 75% of those for business use. At that time, the total amount of data housed on those computers was about 5 exabytes, or 5 billion gigabytes. By 2009, that volume had grown to about 988 exabytes, an increase of 19,660% over seven years.

By 2011, the quantity of electronic data created and replicated had reached 1.8 zettabytes, or 1.8 trillion gigabytes. That was already nearly as many bits of information (approximately 1,022) as there are stars in the universe (approximately 1,024), and the total volume of electronic data is doubling every two years.

The sheer volume of electronic data understandably poses problems in the discovery process. As data volumes increase exponentially, so do the downstream costs of identifying, preserving, processing, hosting and, most significantly, reviewing potentially relevant data. Thankfully, these problems are not insurmountable.

Discovery As a'Strategic Business Process

Approaching discovery as just a component of the latest legal event leads to minimal efficiency and predictability and maximal cost.

In such a scenario, identification, preservation and collection is rushed resulting in a lack of precision and high costs not only for discovery, but also for review and analysis activities.

There is a better way. Discovery is a strategic business process encompassing technology, logistics, quality control and more. Fortunately, there are multiple progressive process improvement models from which we can draw insights.

At root, all of these models focus on identifying the key activities that make up the process, tracking and measuring, and then managing and optimizing them.

Key Process Activities In Discovery

The Electronic Discovery Reference Model (EDRM) is among the most widely accepted frameworks for discussing such activities. It identifies seven essential categories of activities making up the discovery process:

1. Identification
2. Preservation
3. Collection
4. Processing
5. Review
6. Analysis
7. Production

As diverse as these potential activities are, each can be tracked and measured, which in turn means that each can be managed and, ultimately, optimized. This model also identifies seven additional relevant metrics categories.

1. Custodians

Custodians refer to the corporate employees responsible for, or in possession of ,potentially relevant electronically stored information, whether as individuals or as departmental record keepers. Tracking Value Example: The number of custodians is a likely factor in the volume of data implicated and in the time and cost associated with activities such as custodian interviews or physical drive imaging. Specific custodians can also be a factor in the volume of data implicated or in the types of data implicated.

2. Systems

Systems refers to the technological systems used for the creation, storage, management or recovery of materials within the corporate environment, including e-mail systems, messaging systems, collaboration systems, back-up systems, etc. Tracking Value Example: The number and type of systems is a likely factor in the volume of data implicated, as well as in the time and cost required. Specific systems can also be a factor in the volume or types of data implicated or in the likelihood of the data being unique and relevant.

3. Media

Media refers to the various physical storage vehicles for information, such as CDs, DVDs, tapes and paper. Tracking Value Example: Media type is a likely factor in the time and cost required for collection, processing and other activities.

4. Formats

Formats refer to the file formats in which the potentially relevant electronically stored information exists, as well as to the various formats in which it can be reviewed or produced. Tracking Value Example: Formats are a likely factor in review speed, as well as processing and production time and cost.

5. Activities

Activities encompass all of the activities undertaken for the project, such as collection, restoration, review, etc. Tracking Value Example: Different search activities are likely to have different efficacies, as well as to have downstream effects on the volume, time and cost associated with review activities.

6. Status

Status refers to tracking activities against deadlines or budgets or other quantitative benchmarks. Tracking Value Example: Tracking can reveal which activities are most often completed late or over-budget.

7. QA

QA refers to activities or methods utilized for quality assurance. Most often, quality assurance efforts are focused on ensuring that no privileged documents are being produced, that all responsive documents are being produced, and that technical processes (like indexing or conversion) are completed successfully. Tracking Value Example: The specific quality assurance activities selected are likely factors in the time required and the cost incurred, as well as in the overall efficacy of the quality assurance effort.

Approaching Discovery as a Process

So, what if we approach discovery as a strategic business process instead of an event-based activity?

At the beginning of the event, the fundamentals will be the same. The specifics of the event will still dictate the activities in which you engage. The tools, people and service providers you use won't necessarily be any different; and, your posture will still be reactive.

But, you'll be able to react better.

Approaching the discovery process as a strategic business process with the goal of identifying key activities and tracking relevant metrics will clarify your thinking about the immediate case, about the activities it requires and how they interconnect, and as it relates to the most efficient and effective ways to complete those activities as you move through the process.

This will be the first opportunity to start documenting what you do, how you do it, and how well it works ' to start doing the tracking and measuring required to facilitate future management of discovery as a strategic business process.

As the immediate legal event ends, the process will not. You will begin evaluating the intelligence gathered during the process to see what can be learned. You can think about what you wish you had known before this event, what you would like to know before the next one, and what you might do differently in the future.

Repetition

The next step in maturing the discovery process is to continue tracking, measuring and gathering intelligence across several events, and to learn more from each one about the efficiency and efficacy of each key activity.

Your body of knowledge about your discovery process grows, your decisions about your discovery process become more informed, and your posture becomes less reactive and more proactive.

Definition

The next step is formal definition of key activities, documenting how they should be executed (and by whom) and setting goals for their continued improvement.

At this point in maturation, the aggregated intelligence gathered also begins to reduce discovery process unpredictability. Reactivity transforms into 'proactivity' as historical data is used to predict future costs.

Management

The larger the cost and impact of the discovery obligations faced by a litigant, the greater the potential benefit of disciplined process improvement. For serial litigants, it may be worth proceeding beyond defined processes to managed ones.

The additional intelligence gathered and effort expended makes it possible to control all key activities to the extent they can be adapted to event specifics without sacrificing quality or deviating from established specifications. At this level, you are master of your domain with all the intelligence you need to make informed decisions about each aspect of each activity in your discovery process.

Moreover, at this level it becomes possible to start leveraging accumulated intelligence to assess upstream factors, such as how data is being created and retained on a day-to-day basis. It becomes possible to proactively change your posture.

Optimization

For the most-active serial litigants, it may be worth pursuing a state not just of continual readiness, but also of continual improvement.

At this highest maturity level, all activities are part of closed feedback loops with continuous improvement goals. The efficiency and efficacy of each activity is incrementally improved, while the most common causes of variation and deviation are identified and addressed.

Conclusion

Litigation is an unavoidable, unpredictable legal event. Discovery, when approached as an event-based activity, is expensive and chaotic. Approaching discovery instead as a strategic business process reduces cost and eliminates chaos.

To approach discovery as a strategic business process:

1. Key process activities must be identified.
2. Relevant metrics must be selected for tracking and measuring the identified activities.
3. Intelligence gathered must be used to standardize, define, manage and optimize activities.

The longer and more broadly this strategic approach is employed, the greater the potential improvements in efficiency, effectiveness and predictability. All organizations can benefit from achieving a maturity level in which all common processes are defined and repeatable. Serial litigants may benefit from going further, to robust feedback loops, upstream changes and continual process improvement.

Abtin Buergari is CEO and founder of Modus, a Data Management firm that helps some of the world's largest corporations and law firms in the AMLAW 200 leverage intelligence aggregated from individual discovery matters to optimize processes, more accurately predict results and make better-informed, enterprise-wide business decisions. He can be reached at abtin.buergari@discovermodus.com.

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Litigation is an unavoidable legal event. Each litigation event triggers another, evolves through several phases and eventually reaches a resolution. It is a discrete event with a beginning, middle and end.

Discovery has been treated as just one of the phases in those litigation events. Like the events themselves, an unpredictable, unavoidable phase repeated again and again with each new litigation event. Lather, rinse and repeat.

Unfortunately, discovery, as an integral subset of litigation events, has been growing exponentially in cost and scale with the proliferation of electronic data. Document review for discovery has therefore become litigation's single most expensive component.

But discovery doesn't need to be just another event-based activity. It instead can ' and should ' be approached instead as a proactive, repeatable and managed data management process. Crises cost. Process saves.

Data Deluge and'Downstream Effects

As far back as 2002, the world had already consumed one billion personal computers ' about 75% of those for business use. At that time, the total amount of data housed on those computers was about 5 exabytes, or 5 billion gigabytes. By 2009, that volume had grown to about 988 exabytes, an increase of 19,660% over seven years.

By 2011, the quantity of electronic data created and replicated had reached 1.8 zettabytes, or 1.8 trillion gigabytes. That was already nearly as many bits of information (approximately 1,022) as there are stars in the universe (approximately 1,024), and the total volume of electronic data is doubling every two years.

The sheer volume of electronic data understandably poses problems in the discovery process. As data volumes increase exponentially, so do the downstream costs of identifying, preserving, processing, hosting and, most significantly, reviewing potentially relevant data. Thankfully, these problems are not insurmountable.

Discovery As a'Strategic Business Process

Approaching discovery as just a component of the latest legal event leads to minimal efficiency and predictability and maximal cost.

In such a scenario, identification, preservation and collection is rushed resulting in a lack of precision and high costs not only for discovery, but also for review and analysis activities.

There is a better way. Discovery is a strategic business process encompassing technology, logistics, quality control and more. Fortunately, there are multiple progressive process improvement models from which we can draw insights.

At root, all of these models focus on identifying the key activities that make up the process, tracking and measuring, and then managing and optimizing them.

Key Process Activities In Discovery

The Electronic Discovery Reference Model (EDRM) is among the most widely accepted frameworks for discussing such activities. It identifies seven essential categories of activities making up the discovery process:

1. Identification
2. Preservation
3. Collection
4. Processing
5. Review
6. Analysis
7. Production

As diverse as these potential activities are, each can be tracked and measured, which in turn means that each can be managed and, ultimately, optimized. This model also identifies seven additional relevant metrics categories.

1. Custodians

Custodians refer to the corporate employees responsible for, or in possession of ,potentially relevant electronically stored information, whether as individuals or as departmental record keepers. Tracking Value Example: The number of custodians is a likely factor in the volume of data implicated and in the time and cost associated with activities such as custodian interviews or physical drive imaging. Specific custodians can also be a factor in the volume of data implicated or in the types of data implicated.

2. Systems

Systems refers to the technological systems used for the creation, storage, management or recovery of materials within the corporate environment, including e-mail systems, messaging systems, collaboration systems, back-up systems, etc. Tracking Value Example: The number and type of systems is a likely factor in the volume of data implicated, as well as in the time and cost required. Specific systems can also be a factor in the volume or types of data implicated or in the likelihood of the data being unique and relevant.

3. Media

Media refers to the various physical storage vehicles for information, such as CDs, DVDs, tapes and paper. Tracking Value Example: Media type is a likely factor in the time and cost required for collection, processing and other activities.

4. Formats

Formats refer to the file formats in which the potentially relevant electronically stored information exists, as well as to the various formats in which it can be reviewed or produced. Tracking Value Example: Formats are a likely factor in review speed, as well as processing and production time and cost.

5. Activities

Activities encompass all of the activities undertaken for the project, such as collection, restoration, review, etc. Tracking Value Example: Different search activities are likely to have different efficacies, as well as to have downstream effects on the volume, time and cost associated with review activities.

6. Status

Status refers to tracking activities against deadlines or budgets or other quantitative benchmarks. Tracking Value Example: Tracking can reveal which activities are most often completed late or over-budget.

7. QA

QA refers to activities or methods utilized for quality assurance. Most often, quality assurance efforts are focused on ensuring that no privileged documents are being produced, that all responsive documents are being produced, and that technical processes (like indexing or conversion) are completed successfully. Tracking Value Example: The specific quality assurance activities selected are likely factors in the time required and the cost incurred, as well as in the overall efficacy of the quality assurance effort.

Approaching Discovery as a Process

So, what if we approach discovery as a strategic business process instead of an event-based activity?

At the beginning of the event, the fundamentals will be the same. The specifics of the event will still dictate the activities in which you engage. The tools, people and service providers you use won't necessarily be any different; and, your posture will still be reactive.

But, you'll be able to react better.

Approaching the discovery process as a strategic business process with the goal of identifying key activities and tracking relevant metrics will clarify your thinking about the immediate case, about the activities it requires and how they interconnect, and as it relates to the most efficient and effective ways to complete those activities as you move through the process.

This will be the first opportunity to start documenting what you do, how you do it, and how well it works ' to start doing the tracking and measuring required to facilitate future management of discovery as a strategic business process.

As the immediate legal event ends, the process will not. You will begin evaluating the intelligence gathered during the process to see what can be learned. You can think about what you wish you had known before this event, what you would like to know before the next one, and what you might do differently in the future.

Repetition

The next step in maturing the discovery process is to continue tracking, measuring and gathering intelligence across several events, and to learn more from each one about the efficiency and efficacy of each key activity.

Your body of knowledge about your discovery process grows, your decisions about your discovery process become more informed, and your posture becomes less reactive and more proactive.

Definition

The next step is formal definition of key activities, documenting how they should be executed (and by whom) and setting goals for their continued improvement.

At this point in maturation, the aggregated intelligence gathered also begins to reduce discovery process unpredictability. Reactivity transforms into 'proactivity' as historical data is used to predict future costs.

Management

The larger the cost and impact of the discovery obligations faced by a litigant, the greater the potential benefit of disciplined process improvement. For serial litigants, it may be worth proceeding beyond defined processes to managed ones.

The additional intelligence gathered and effort expended makes it possible to control all key activities to the extent they can be adapted to event specifics without sacrificing quality or deviating from established specifications. At this level, you are master of your domain with all the intelligence you need to make informed decisions about each aspect of each activity in your discovery process.

Moreover, at this level it becomes possible to start leveraging accumulated intelligence to assess upstream factors, such as how data is being created and retained on a day-to-day basis. It becomes possible to proactively change your posture.

Optimization

For the most-active serial litigants, it may be worth pursuing a state not just of continual readiness, but also of continual improvement.

At this highest maturity level, all activities are part of closed feedback loops with continuous improvement goals. The efficiency and efficacy of each activity is incrementally improved, while the most common causes of variation and deviation are identified and addressed.

Conclusion

Litigation is an unavoidable, unpredictable legal event. Discovery, when approached as an event-based activity, is expensive and chaotic. Approaching discovery instead as a strategic business process reduces cost and eliminates chaos.

To approach discovery as a strategic business process:

1. Key process activities must be identified.
2. Relevant metrics must be selected for tracking and measuring the identified activities.
3. Intelligence gathered must be used to standardize, define, manage and optimize activities.

The longer and more broadly this strategic approach is employed, the greater the potential improvements in efficiency, effectiveness and predictability. All organizations can benefit from achieving a maturity level in which all common processes are defined and repeatable. Serial litigants may benefit from going further, to robust feedback loops, upstream changes and continual process improvement.

Abtin Buergari is CEO and founder of Modus, a Data Management firm that helps some of the world's largest corporations and law firms in the AMLAW 200 leverage intelligence aggregated from individual discovery matters to optimize processes, more accurately predict results and make better-informed, enterprise-wide business decisions. He can be reached at abtin.buergari@discovermodus.com.

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