Your e-Discovery Bucket List

These practices are essential, since most e-discovery starts as an exercise in defining the boundaries of a particular matter without necessarily having full clarity into how large the data universe is, where it resides, or how accessible it might be. If the institution itself is at risk from a particular litigation threat, the chief legal officer will secure any necessary funds to combat the risk. The ultimate goal, however, is to implement a system of protocols to prevent most hazards before the fire alarm rings.

Maximize the 'Meet and Confer'

Identify your Meet and Confer representative in advance of any litigation event and train that individual to understand the nuances of depositions or discovery in general. He or she must recognize at the outset that possible does not mean practicable.

When selecting this individual, carefully evaluate whether he or she has the personality and technical background to manage the pressure of the position, as well as familiarity with regulatory agency practices and judicial preferences. Discuss the organization's history, trial experience, and data architecture to establish a fully transparent environment.

As part of that conversation, consider establishing a case management order template to set expectations between the parties. This should include considerations associated with the use of temporary lawyers, advanced technology, such as predictive coding, and document types (e.g., eliminating any requirement to TIFF Excel documents). With respect to technology assisted review efforts, jointly agree to honor a clawback agreement and list an acceptable target recall rate.

Map Your Data Landscape

In the current environment of data everywhere, it is imperative that law departments understand the format and location of the organization's entire information archive. While the Federal Rules of Civil Procedure do not mandate formal data maps, they do require legal teams to be prepared to provide one. This includes highlighting storage, access, and volume issues, among other characteristics.

In addition to streamlining complex negotiations, understanding their full data environment will help savvy teams audit their discovery protocols to identify improvements, seamlessly integrate new tools, and allow new hires to quickly familiarize themselves with the architecture.

In fact, given the level of attrition and shifting employment activities in a contracting legal market, it is essential to specifically recognize the attributes of privileged data. It is also critical for e-discovery teams to know which outside lawyers are currently working on their matters (since a simple inquiry occasionally reveals that individual business units are independently engaging attorneys for unusual projects), and ask the accounting department for archived invoices in an effort to compile data on prior external support as well.

This proactive preparation builds credibility with adversaries and the court, which is incredibly valuable for tempering the lack of predictability in modern litigation. It demonstrates a level of integrity in the process that many have come to expect, but do not always receive.

Drive Dynamic Data Management

With advanced technology and increased awareness, there is no longer any tolerance for a lack of understanding. As a result, legal teams must ensure that they have fully documented any instances of data disposition, destruction, or corruption in a timely manner. It is wholly unacceptable to advise a discovery recipient of missing information immediately prior to delivery of the documents regardless of the innocence of the error.

There is an expectation of technological literacy, including basic Boolean logic in search protocols and familiarity with fairly advanced analytics. The ability to competently discuss complex terms will often persuade adversaries and the court that your team is sufficiently capable of proceeding.'

As part of this routine, it is essential to craft a correct search, establish appropriate testing arrangements, and sufficiently sample to conserve resources and time. A cursory evaluation of initial keywords can quickly highlight whether you saved or overspent. Failing to take search precautions and recognize the need for data management could result in a proverbial e-discovery money pit of inconsistency.

Analytics and predictive coding now offer legal teams an accessible scientific approach that they can leverage on a reliable basis. If a reviewer labels a document privileged in a prior matter, for example, that designation could provide tremendous value in a future case. In
addition, any near-duplication capabilities will serve to build efficiency and accuracy into this process while presenting a defensible strategy for being more expansive.

Audit Outside Counsel Know-How

This is critical, since courts are more sophisticated than ever before in the nature of e-discovery. As a result, there is little patience for confusion or uncertainty by litigants, their lawyers, or outside vendors. It is, therefore, essential for law departments to periodically audit their outside counsel for technical expertise given the amount of case law highlighting that parties or their lawyers cannot delegate responsibility for effective e-discovery to a non-party consultant or vendor.

In addition to the Sedona Conference guidelines available in Best Practices Recommendations & Principles for Addressing Electronic Document Production (available on the Sedona site at http://bit.ly/1dOqABT), which advises that the “ultimate responsibility for ensuring the preservation, collection, processing and production of electronically stored information rests with the party and its counsel, not with the nonparty consultant or vendor,” there are many cases supporting this standard. In Peerless Industries, Inc. v. Crimson AV, LLC (N.D. Ill. Jan. 8, 2013), the court sanctioned a party for failing to adequately supervise its vendor. It highlighted that outsourcing is not synonymous with a complete abdication of control over the review process.

Similar adverse judgments may arise from failure to produce “reasonably accessible” information, including deficient load files or metadata due to a vendor's error, and prompt cost-shifting. Legal teams can combat the potential for judicial admonishment by immediately identifying at the outset of any matter the complete universe of potential sources of electronic data, including prospective custodians, document retention and destruction policies, and those with key responsibility for information management.

They must also initially ensure that their outside attorneys and vendors have the technical expertise to manage the case, as well as periodically revisit those skills to ensure their aptitude. “There is a much higher threshold for basic competence in e-discovery,” says D. Casey Flaherty, Corporate Counsel for Kia Motors America, Inc. Flaherty has garnered much attention and acclaim for designing a technology competency audit for Kia's outside counsel. “It is a unique expertise, just like patent, tax, or trademarks, and not an area where generalists should be leveraged,” he adds.

Flaherty recommends focusing on outside counsel experience and specialization. “If e-discovery is one of the first 15 words in their bio, they are worth talking to.” That said, “While you want them to know more than you do, they should also be able to speak at your level.”

To streamline the process, work with outside e-discovery counsel to develop internal protocols, including documents that provide legal teams with specific instructions and prohibitions, guidance for navigating a Rule 26 conference, and content for standard responses. Ultimately Flaherty notes, “It is well within the client's rights to inquire about technical skill and not something for which you need to apologize.”

Metrics

Start this evaluation process by developing internal metrics to gather an understanding of which outside counsel are most proficient at achieving a prompt resolution to your matters. Doing so will help your team increase the likelihood of success going forward and showcase a level of insight into the business side of litigation with which most legal teams are unfamiliar.

Combine this exercise with predictive analytics to determine where you concentrate your spending, which firms receive the most benefit, and whether the allocations are optimal, among other topics. This will set the foundation for follow-up conversations with outside counsel and your internal team at the outset and conclusion of each matter. That analysis will foster a much more dynamic and evolving set of standards.

Piloting and Testing

It also helps foster practical applications. With the variety of technology available to corporate law departments, for instance, implementing pilot programs has become an increasingly popular way for teams to determine whether a tool has the scalability, integration flexibility, and functionality to serve as a long-term option. And, given the proliferation of cloud-based tools, the logistics of testing new applications are much less complex than even a few years ago.

This trend is fostering stronger relationships between legal teams and their colleagues in IT or records management since it is often a cross-disciplinary group that must determine whether a tool under review meets myriad specifications prior to formal adoption. That heightened interaction influences a variety of micro and macro issues throughout the organization.

Value Vendor Relationships

Internal benefits aside, typically, those in the best position to report on and showcase the most useful technology are the developers themselves. They also tend to be familiar with the full competitive landscape.

For that reason, consider strengthening your relationships with outside vendors and technology professionals. They can provide suggestions, share useful background information, and offer their experience in similar situations. These relationships will also help to inform future buying decisions and conduct a comparative analysis when
considering infrastructure upgrades.

Conclusion

Ultimately, achieving the goal of completing your bucket list is dependent on how effectively your team anticipates challenges and solutions associated with future litigation. Given the inherent variability and uncertainty, it is essential to foster deeper connections with colleagues in IT, holistically apply analytics, maximize 'meet and confer' opportunities, pilot new technology, and continually monitor outside counsel efficiency.

David Boyhan is Director of Enterprise Content Management at Cerberus Capital Management L.P., New York. Sanjay Manocha is with RVM Enterprises, Inc.

In-house teams that have been subject to resource constraints and staff reductions must approach their litigation more thoughtfully and creatively than ever before. They need to establish an e-discovery “bucket list” that contains both new tools and basic processes to use when things go pear shaped.

In some cases, these tools could be capital outlays for in-house software. In others, it may be appropriate to explore alternatives to traditional document review technologies. By establishing strong relationships with IT, records management, and compliance, and by leveraging new technologies such as predictive analytics, legal teams will find themselves empowered, rather than disheartened.'

Start by anticipating the opportunities a “meet and confer” may offer for applying innovative technology, piloting new tools in anticipation of, instead of in reaction to, sensitive cases, addressing privilege review in the current era, and developing internal metrics to gauge the efficiency of outside counsel.

These practices are essential, since most e-discovery starts as an exercise in defining the boundaries of a particular matter without necessarily having full clarity into how large the data universe is, where it resides, or how accessible it might be. If the institution itself is at risk from a particular litigation threat, the chief legal officer will secure any necessary funds to combat the risk. The ultimate goal, however, is to implement a system of protocols to prevent most hazards before the fire alarm rings.

Maximize the 'Meet and Confer'

Identify your Meet and Confer representative in advance of any litigation event and train that individual to understand the nuances of depositions or discovery in general. He or she must recognize at the outset that possible does not mean practicable.

When selecting this individual, carefully evaluate whether he or she has the personality and technical background to manage the pressure of the position, as well as familiarity with regulatory agency practices and judicial preferences. Discuss the organization's history, trial experience, and data architecture to establish a fully transparent environment.

As part of that conversation, consider establishing a case management order template to set expectations between the parties. This should include considerations associated with the use of temporary lawyers, advanced technology, such as predictive coding, and document types (e.g., eliminating any requirement to TIFF Excel documents). With respect to technology assisted review efforts, jointly agree to honor a clawback agreement and list an acceptable target recall rate.

Map Your Data Landscape

In the current environment of data everywhere, it is imperative that law departments understand the format and location of the organization's entire information archive. While the Federal Rules of Civil Procedure do not mandate formal data maps, they do require legal teams to be prepared to provide one. This includes highlighting storage, access, and volume issues, among other characteristics.

In addition to streamlining complex negotiations, understanding their full data environment will help savvy teams audit their discovery protocols to identify improvements, seamlessly integrate new tools, and allow new hires to quickly familiarize themselves with the architecture.

In fact, given the level of attrition and shifting employment activities in a contracting legal market, it is essential to specifically recognize the attributes of privileged data. It is also critical for e-discovery teams to know which outside lawyers are currently working on their matters (since a simple inquiry occasionally reveals that individual business units are independently engaging attorneys for unusual projects), and ask the accounting department for archived invoices in an effort to compile data on prior external support as well.

This proactive preparation builds credibility with adversaries and the court, which is incredibly valuable for tempering the lack of predictability in modern litigation. It demonstrates a level of integrity in the process that many have come to expect, but do not always receive.

Drive Dynamic Data Management

With advanced technology and increased awareness, there is no longer any tolerance for a lack of understanding. As a result, legal teams must ensure that they have fully documented any instances of data disposition, destruction, or corruption in a timely manner. It is wholly unacceptable to advise a discovery recipient of missing information immediately prior to delivery of the documents regardless of the innocence of the error.

There is an expectation of technological literacy, including basic Boolean logic in search protocols and familiarity with fairly advanced analytics. The ability to competently discuss complex terms will often persuade adversaries and the court that your team is sufficiently capable of proceeding.'

As part of this routine, it is essential to craft a correct search, establish appropriate testing arrangements, and sufficiently sample to conserve resources and time. A cursory evaluation of initial keywords can quickly highlight whether you saved or overspent. Failing to take search precautions and recognize the need for data management could result in a proverbial e-discovery money pit of inconsistency.

Analytics and predictive coding now offer legal teams an accessible scientific approach that they can leverage on a reliable basis. If a reviewer labels a document privileged in a prior matter, for example, that designation could provide tremendous value in a future case. In
addition, any near-duplication capabilities will serve to build efficiency and accuracy into this process while presenting a defensible strategy for being more expansive.

Audit Outside Counsel Know-How

This is critical, since courts are more sophisticated than ever before in the nature of e-discovery. As a result, there is little patience for confusion or uncertainty by litigants, their lawyers, or outside vendors. It is, therefore, essential for law departments to periodically audit their outside counsel for technical expertise given the amount of case law highlighting that parties or their lawyers cannot delegate responsibility for effective e-discovery to a non-party consultant or vendor.

In addition to the Sedona Conference guidelines available in Best Practices Recommendations & Principles for Addressing Electronic Document Production (available on the Sedona site at http://bit.ly/1dOqABT), which advises that the “ultimate responsibility for ensuring the preservation, collection, processing and production of electronically stored information rests with the party and its counsel, not with the nonparty consultant or vendor,” there are many cases supporting this standard. In Peerless Industries, Inc. v. Crimson AV, LLC (N.D. Ill. Jan. 8, 2013), the court sanctioned a party for failing to adequately supervise its vendor. It highlighted that outsourcing is not synonymous with a complete abdication of control over the review process.

Similar adverse judgments may arise from failure to produce “reasonably accessible” information, including deficient load files or metadata due to a vendor's error, and prompt cost-shifting. Legal teams can combat the potential for judicial admonishment by immediately identifying at the outset of any matter the complete universe of potential sources of electronic data, including prospective custodians, document retention and destruction policies, and those with key responsibility for information management.

They must also initially ensure that their outside attorneys and vendors have the technical expertise to manage the case, as well as periodically revisit those skills to ensure their aptitude. “There is a much higher threshold for basic competence in e-discovery,” says D. Casey Flaherty, Corporate Counsel for Kia Motors America, Inc. Flaherty has garnered much attention and acclaim for designing a technology competency audit for Kia's outside counsel. “It is a unique expertise, just like patent, tax, or trademarks, and not an area where generalists should be leveraged,” he adds.

Flaherty recommends focusing on outside counsel experience and specialization. “If e-discovery is one of the first 15 words in their bio, they are worth talking to.” That said, “While you want them to know more than you do, they should also be able to speak at your level.”

To streamline the process, work with outside e-discovery counsel to develop internal protocols, including documents that provide legal teams with specific instructions and prohibitions, guidance for navigating a Rule 26 conference, and content for standard responses. Ultimately Flaherty notes, “It is well within the client's rights to inquire about technical skill and not something for which you need to apologize.”

Metrics

Start this evaluation process by developing internal metrics to gather an understanding of which outside counsel are most proficient at achieving a prompt resolution to your matters. Doing so will help your team increase the likelihood of success going forward and showcase a level of insight into the business side of litigation with which most legal teams are unfamiliar.

Combine this exercise with predictive analytics to determine where you concentrate your spending, which firms receive the most benefit, and whether the allocations are optimal, among other topics. This will set the foundation for follow-up conversations with outside counsel and your internal team at the outset and conclusion of each matter. That analysis will foster a much more dynamic and evolving set of standards.

Piloting and Testing

It also helps foster practical applications. With the variety of technology available to corporate law departments, for instance, implementing pilot programs has become an increasingly popular way for teams to determine whether a tool has the scalability, integration flexibility, and functionality to serve as a long-term option. And, given the proliferation of cloud-based tools, the logistics of testing new applications are much less complex than even a few years ago.

This trend is fostering stronger relationships between legal teams and their colleagues in IT or records management since it is often a cross-disciplinary group that must determine whether a tool under review meets myriad specifications prior to formal adoption. That heightened interaction influences a variety of micro and macro issues throughout the organization.

Value Vendor Relationships

Internal benefits aside, typically, those in the best position to report on and showcase the most useful technology are the developers themselves. They also tend to be familiar with the full competitive landscape.

For that reason, consider strengthening your relationships with outside vendors and technology professionals. They can provide suggestions, share useful background information, and offer their experience in similar situations. These relationships will also help to inform future buying decisions and conduct a comparative analysis when
considering infrastructure upgrades.

Conclusion

Ultimately, achieving the goal of completing your bucket list is dependent on how effectively your team anticipates challenges and solutions associated with future litigation. Given the inherent variability and uncertainty, it is essential to foster deeper connections with colleagues in IT, holistically apply analytics, maximize 'meet and confer' opportunities, pilot new technology, and continually monitor outside counsel efficiency.

David Boyhan is Director of Enterprise Content Management at Cerberus Capital Management L.P., New York. Sanjay Manocha is with RVM Enterprises, Inc.