The time has come to think of hiring litigation project managers the way you hire expert witnesses for your trial, they provide a needed expertise to your overall litigation plan, and their goal is to provide an understanding of the process.
Even this somewhat “radical” statement does not go far enough. Too many attorneys see e-discovery as an area of law that should be left to the resident geek lawyer in the firm. Given the increasing complexity and involvement of e-discovery in every facet of litigation, this is a dangerous attitude. It is not enough to rely on the resident geek or even an e-discovery practice group within the firm to provide the technical expertise. All lawyers should be knowledgeable about the basic facets of e-discovery law, because it is integral to today’s practice of law. The primary role of a legal project manager or practice group should be to design, promulgate and monitor compliance with firm-wide e-discovery standards.
We now understand that e-discovery is extremely complex and consists of a lot of complex moving parts. These include:
• Multiple data sources – backup tapes, email servers, legacy systems, cloud servers, Smartphones and personal computers.
• Multiple custodians – current and past employees, consultants, sales people, third party contacts.
• Multiple outside counsels – based on the size of the litigation, there may easily be several firms involved in the document review, determining document relevance, privilege in order to prepare document productions.
• Multiple data privacy issues – based on the location of data, rules of the industry and even cross border litigation.
The e-discovery process can include a number of technologies that should be used during each phase of the e-discovery lifecycle. The short list of technologies includes early case assessment tools, data preservation and collection utilities, digital media index and search applications that operate behind firewalls, software to search and index email and e-document files and concept based categorization and review technologies. This list is far from exhaustive and new technologies appear each month to help gain control over the information overload that can quickly drown litigation if not handled appropriately.
The risks in not getting this “right” are extremely high. Two cases which highlight these risks are Qualcomm, Inc. v. Broadcom Corporation [No. 05-CV-1958-B(BLM), 2007 WL 2296441 (S.D. Cal)] and Coleman (Parent) Holdings v. Morgan Stanley & Co, Inc. [2005 WL 679071 (Fla.Cir.Ct)]. These and other recent cases are prime examples which resulted in significant costs; from increased legal fess to sanctions, which were associated with the confusion that resulted from inadequate identification, preservation and production of potentially relevant documents.
What Makes Legal Project Management Different?
Legal Project Management (LPM) is somewhat different that the general field of project management. The skills and attitudes that are valuable in IT or manufacturing project management can be counterproductive in the litigation landscape. While both encourage extensive planning before execution begins and both draw on standardizing the execution of tasks to produce uniform outcomes, there are some major differences.
One of the primary differences is the focus of legal project management. The goal of LPM is to create greater consistency and efficiency into decisions and judgments made by humans involved in a widely varying (and often hostile and adversarial) situation. LPM is cognizant of the fact that legal issues are not precisely controllable and goals are not always attainable, resulting in a constant re-definition of the LPM approach in a particular case. The primary difference between project management and LPM can be summarized as follows; project management focuses on delivery the same results in a consistent situation, LPM focuses on delivering value as efficiently as possible under a set of widely varying conditions, with tremendous human interaction changing the conditions on an hourly basis.
What are Some Key Best Practices to Consider?
Firms should consider an equal balance of practice, methodology, and technology when implementing LPM. At a minimum, consider involving at least one project manager familiar with e-Discovery challenges during every phase in the lifecycle. Having a person with direct “trench warfare” experience will help ensure that there is constant improvement in firm practice moving forward by eliminating the same pitfalls from project to project. Use that person to spread the knowledge and educate the rest of firm about the importance of LPM consistency. The goal is to implement repeatable, documented, e-Discovery processes that can be explained to the court, to show that you are being proactive. Certain technology solutions can assist in these complicated steps.
• Create and use pre-developed workflow outlines for tasks and activities of each lifecycle. While each e-discovery project will vary, there are some basic activities that should be consistently implemented.
• Use project software to assign, track and record the status of each litigation task. Typically there are multiple individuals working on a particular phase of e-discovery. Using tracking software helps assure that nothing is forgotten.
• Use litigation review software to create project matrices and statistics of the data collected, indexed, and searched. Eliminate documents that are misplaced dure to process errors.
• Project calendaring software allows to track milestones and project deadlines. This is critical to ensure that resources are allocated properly throughout the project lifecycle.
• Report Generation options provide summary and/or detailed metrics on the data preserved, collected, searched, reviewed, and produced. It should also provide status updates to individuals who need to know how the process is progressing.
• A centralized searchable repository for project related documents, reports, invoices and materials.
Project management helps alleviate confusion, reduces litigation costs and can help avoid expensive sanctions. By implementing sound project management, one can ensure that there will be a well documented, reasonable, and repeatable approach to the e-Discovery process. The area of LPM is growing in importance, as indicated by the involvement of groups such as the Project Management Institute’s creation of online webinars on the value of project management in e-discovery (scheduled for January 26, 2011).
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