e-Discovery

In recent years, the need to treat e-discovery as a repeatable, streamlined process has been well-evidenced by a series of U.S. court opinions citing a wide range of e-discovery failures, including those related to preservation of electronically stored information (ESI), document productions and identification of potential custodians.

Courts are well educated on advancing technologies, like early case assessment (ECA), legal hold software and predictive coding, as a means to control costs (proportionality), demonstrate reasonableness (transparency) and be more prepared for negotiations (cooperation). Yet, when looking at Fortune 1000 corporations for legal holds alone, Huron Legal estimates that only 300 to 350 organizations are taking advantage of technology to automate their processes.

Three members of AOL's legal department, and Rob Hichens of Huron Legal, discussed this issue in the second installment of Exterro's E-Discovery Masters webcast series, “Transforming E-Discovery as a Business Process,” http://bit.ly/1ueYDZI. This article shares their expertise and insights on how to reduce e-discovery complexity in five simple, but often hard to implement, steps.

Defining e-Discovery Maturity

Every organization has different levels of maturity (i.e., degree of formalization and optimization) when it comes to managing e-discovery.

According to Hichens, most of Huron's clients, when getting started, fall in the 1-2 range of the maturity scale. This was reiterated by AOL, which has been actively rebuilding and redefining its e-discovery processes. According to AOL's lead paralegal, until recently, legal holds were maintained by AOL's legal department on a spreadsheet. Since AOL is a multi-faceted company with many acquired companies, managing all of the holds via spreadsheet became a huge challenge.

Getting Started

To get started, it is important to involve all stakeholders and assess all current processes used throughout the organization with the following five-step process:

1. Define roles.' Many, if not most, project mistakes can be traced back to a misunderstanding or miscommunication. Formally defining roles and responsibilities and building them into the e-discovery workflow as to what will be delivered, how, when and by whom will prevent mistaken assumptions that are ultimately proven wrong and cause project delays or failures.

2. Review current state/gap analysis. In order to think more strategically about how to address each e-discovery phase, it is important to review the current state of the legal process and technologies being used to determine organization's maturity level.

3. Develop a remediation plan. Once the improvements have been identified, the remediation plan needs to incorporate how to put them into effect and include the necessary approvals from executive sponsors. The most important thing to note when implementing the plan, is that you do not need to roll out every phase at once.

4. Develop e-discovery guidelines. Create a set of business guidelines that describe step-by-step the actions taken and roles and responsibilities of all stakeholders ' legal, IT, records management ' that detail how your organization treats e-discovery.

5. Execute the plan. The final step is to execute the plan for new projects and then begin measuring and improving the quality of project outcomes. Start with a test drive, such as a legal hold, and then adjust the process and roll out to other phases of the process.

Process Improvement in Action

AOL's legal team applied this five-step process, highlighting two key areas that served as the catalysts of its change: legal hold and IT department communications. In the initial assessment, some of the key areas that the AOL team reviewed included:

• Data volume: How much data was being accessed at the front and back end of the process?
• Staffing: How much time was being spent on the work being performed?
• Outside spend: How much money was being spent on outside counsel fees? Was the money being spent at the right part of the process?

With an automated legal hold solution now in place, the legal team receives nightly automatic feeds from PeopleSoft, so employee statuses are known every morning. Currently, the AOL team considers its e-discovery process to be in a relearning and rebuilding phase. The team reviews and refines its processes every six months.

Looking forward, the lead paralegal added that the company is looking at additional cost and efficiency improvements, such as: 1) Adding the ability to track all communications between its legal hold system and technology requests in projects; 2) Streamlining document collections process to limit new collections to only new data; 3) Conducting online custodian interviews and tying the responses to the legal hold history; 4) Having its legacy data, which includes patent technologies, scanned, cataloged and tracked so that it is easily accessible during discovery.

Conclusion

Applying the discipline of process optimization to e-discovery offers counsel and their teams the ability to meet both current and future e-discovery obligations. It has the potential to reduce ESI storage and review costs substantially by instituting standard protocols that prevent missed steps and minimize the corpus of ESI as it moves from phase to phase. It also brings into the legal department the benefits enjoyed by the organization's other departments. Nearly every other enterprise function ' financial reporting, application development, procurement, supply chain management, etc. ' has realized the potential of process optimization.

Scott Giordano is corporate technology counsel for Exterro.

In recent years, the need to treat e-discovery as a repeatable, streamlined process has been well-evidenced by a series of U.S. court opinions citing a wide range of e-discovery failures, including those related to preservation of electronically stored information (ESI), document productions and identification of potential custodians.

Courts are well educated on advancing technologies, like early case assessment (ECA), legal hold software and predictive coding, as a means to control costs (proportionality), demonstrate reasonableness (transparency) and be more prepared for negotiations (cooperation). Yet, when looking at Fortune 1000 corporations for legal holds alone, Huron Legal estimates that only 300 to 350 organizations are taking advantage of technology to automate their processes.

Three members of AOL's legal department, and Rob Hichens of Huron Legal, discussed this issue in the second installment of Exterro's E-Discovery Masters webcast series, “Transforming E-Discovery as a Business Process,” http://bit.ly/1ueYDZI. This article shares their expertise and insights on how to reduce e-discovery complexity in five simple, but often hard to implement, steps.

Defining e-Discovery Maturity

Every organization has different levels of maturity (i.e., degree of formalization and optimization) when it comes to managing e-discovery.

According to Hichens, most of Huron's clients, when getting started, fall in the 1-2 range of the maturity scale. This was reiterated by AOL, which has been actively rebuilding and redefining its e-discovery processes. According to AOL's lead paralegal, until recently, legal holds were maintained by AOL's legal department on a spreadsheet. Since AOL is a multi-faceted company with many acquired companies, managing all of the holds via spreadsheet became a huge challenge.

Getting Started

To get started, it is important to involve all stakeholders and assess all current processes used throughout the organization with the following five-step process:

1. Define roles.' Many, if not most, project mistakes can be traced back to a misunderstanding or miscommunication. Formally defining roles and responsibilities and building them into the e-discovery workflow as to what will be delivered, how, when and by whom will prevent mistaken assumptions that are ultimately proven wrong and cause project delays or failures.

2. Review current state/gap analysis. In order to think more strategically about how to address each e-discovery phase, it is important to review the current state of the legal process and technologies being used to determine organization's maturity level.

3. Develop a remediation plan. Once the improvements have been identified, the remediation plan needs to incorporate how to put them into effect and include the necessary approvals from executive sponsors. The most important thing to note when implementing the plan, is that you do not need to roll out every phase at once.

4. Develop e-discovery guidelines. Create a set of business guidelines that describe step-by-step the actions taken and roles and responsibilities of all stakeholders ' legal, IT, records management ' that detail how your organization treats e-discovery.

5. Execute the plan. The final step is to execute the plan for new projects and then begin measuring and improving the quality of project outcomes. Start with a test drive, such as a legal hold, and then adjust the process and roll out to other phases of the process.

Process Improvement in Action

AOL's legal team applied this five-step process, highlighting two key areas that served as the catalysts of its change: legal hold and IT department communications. In the initial assessment, some of the key areas that the AOL team reviewed included:

• Data volume: How much data was being accessed at the front and back end of the process?
• Staffing: How much time was being spent on the work being performed?
• Outside spend: How much money was being spent on outside counsel fees? Was the money being spent at the right part of the process?

With an automated legal hold solution now in place, the legal team receives nightly automatic feeds from PeopleSoft, so employee statuses are known every morning. Currently, the AOL team considers its e-discovery process to be in a relearning and rebuilding phase. The team reviews and refines its processes every six months.

Looking forward, the lead paralegal added that the company is looking at additional cost and efficiency improvements, such as: 1) Adding the ability to track all communications between its legal hold system and technology requests in projects; 2) Streamlining document collections process to limit new collections to only new data; 3) Conducting online custodian interviews and tying the responses to the legal hold history; 4) Having its legacy data, which includes patent technologies, scanned, cataloged and tracked so that it is easily accessible during discovery.

Conclusion

Applying the discipline of process optimization to e-discovery offers counsel and their teams the ability to meet both current and future e-discovery obligations. It has the potential to reduce ESI storage and review costs substantially by instituting standard protocols that prevent missed steps and minimize the corpus of ESI as it moves from phase to phase. It also brings into the legal department the benefits enjoyed by the organization's other departments. Nearly every other enterprise function ' financial reporting, application development, procurement, supply chain management, etc. ' has realized the potential of process optimization.

Scott Giordano is corporate technology counsel for Exterro.