Save Money By Taking Stock Of Your E-Discovery Over The Summer

Wednesday, May 16, 2012 - 11:45

Aside from long walks on the beach, barbecues and family trips, the summer is the ideal time for corporate counsel to reevaluate the first half of the year. Taking stock in this way will help frame the law department’s success and identify key challenges. It will also allow legal teams to gauge the impact of recent developments and adjust their existing cost-saving strategies.

This effort is part of a new era of routine reinvention fueled by the rapidly changing digital landscape in the legal community. With the rising acceptance of technology-assisted review and continued importance of streamlining electronic discovery for litigation efficiency, in-house counsel may find material benefits in studying their processes over the next month or two while plaintiff’s counsel is on vacation.

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Begin by readying your process documentation to ensure that it is still accurate. As projects progressed during the first half of the year, you may have seen gaps in coverage for unusual issues or unforeseen activities. Savvy teams must adjust their operations more frequently to account for these changes, which could include distinctions in responsibilities and organizational structure. 

Given the economic uncertainty that still plagues many companies, management is often shifting roles, reorganizing groups and eliminating or streamlining staffing. An external records management team may have handled collections in January, but forensic specialists resident in the law department may now have that oversight. In addition to accounting for this development, changes of this type necessitate a conversation with the outside vendor relating to access to records and general security issues, including decryption.

The rulings associated with predictive coding from the Southern District of New York in Da Silva Moore have also prompted many legal teams to reconsider their productivity tools earlier than expected this year. As IT systems change, however, protocols must change with them. One may need to formulate workarounds, which also requires documentation updates. The key is to ensure seamless operations and continuity.

Monitor Metrics

Before engaging in an assessment of your e-discovery or litigation profile, compile the data necessary to make an informed decision. Start by focusing on the amount of data your team collected in the first six months of the year. This number will reveal whether certain custodians are hoarding data and/or following global retention policies. Their compliance with internal guidelines can have a dramatic impact on the efficiency of your collection practices in the future.

Compare this number to the data you sent to your vendor partners to measure the effectiveness of the filtering methods for review and production. Finally, track the payments made for processing each gigabyte of data and calculate a rough cost per responsive document. You cannot determine whether your metrics are high or low without a point of reference.

Contrasting the amount of data hosted with the amount sent to your trusted vendor will help your team determine whether the project management and outside counsel teams are collaborating. This is particularly important for tiered pricing campaigns that value hosted data higher than processed data collected in-house. A large delta between these figures is a hallmark of efficiency for eliminating irrelevant data.

Reevaluate Rates

Given the different pricing structures available to distinct types of information, including fees per gigabyte, per document or on a flat subscription, study the rates you paid on previously completed projects. Determine whether those arrangements were effective or require additional consideration. Focus on upcoming matters and identify any distinctions that may necessitate modification.

As part of the process, engage the vendor in a conversation about its additional capabilities and request a demo of any upgraded tools or premium services that it now offers. Try to meet the vendor’s new hires as well to assure yourself that the company’s capabilities remain at the highest level. "Not everyone’s data is the same, so you really want to have a good grasp on your metrics to make strong decisions," advises one in-house lawyer.

Revisit Relationships

In addition to pricing, the terms and conditions associated with each project may have an impact on its success. For that reason, review agreements with your vendor to ensure that you are still comfortable with the indemnity and insurance provisions, as well as the general terms of your contracts. 

You may want to mitigate your risk differently with higher insurance limits or a more robust indemnity clause. Also, provide and solicit feedback on the most recent project to set the foundation for victory this fall.

Repurpose Data

Given the diversity and the increasing size of a typical data set, find ways to repurpose your information and minimize redundant efforts. Litigants routinely have cases with similar custodians and subjects, yet filed by different plaintiffs in varied jurisdictions. 

Those legal teams that find ways to reuse the coding from one matter to another, particularly privilege designations, maintain consistency and reduce risk. In fact, when producing documents on similar subjects, especially with the same party, you must ensure consistency or risk being caught in what that in-house lawyer described as a "gotcha" situation, undermining the credibility of your discovery efforts.

Expand Your E-Discovery Ecosystem

To enhance your ability to repurpose data, evaluate your technology portfolio and consider piloting new tools to keep pace with recent developments in technology-assisted review, electronic billing, matter management, budgeting and other capabilities.

Reestablish communication with the members of your organization’s IT department in an effort to better organize or consolidate key document collections. Consider assuming greater control and involvement by adding new processes into the legal department’s core responsibilities.

Focus your evaluation on the management of each lawsuit and critical matter. Compile the data associated with your findings to more frequently gauge the performance of your outside counsel and to maintain better control over your finances. Consider structuring your accounting systems to provide these reports automatically.

Minimize Manual Operations

Although the promise of artificial intelligence in document review is receiving the bulk of media coverage, automation has the potential to transform every aspect of a law department’s operations. Developing repeatable processes that a computer can replicate with absolute precision will allow chief legal officers and other corporate leaders to refocus their talented teams on both analyzing important issues and continuing to streamline their practices. Determine where you might be able to incorporate automation or, at the very least, uniformity in your approach.

Formalize Your Processes

As part of your uniformity campaign, create standard forms and spreadsheets to more effectively document your processes. Litigation is inherently uncertain, and formulating key strategies in advance can prove beneficial throughout the lifecycle of a particular matter. This is especially valuable for legal teams that operate with minimal staff and resources.

Also, revisit how your team responds to discovery requests, as well as the manner in which it preserves and collects data. Determine whether your practice of interviewing custodians or requiring the completion of a questionnaire is effective. Discuss the value of implementing legal holds and how you obtain key data from distant servers.  Ultimately, to be successful, you must sincerely assess your protocols for identifying, preserving and collecting data as efficiently as possible.

Engage Outsiders In Your Strategic Alignment

As you develop metrics and continue to evaluate your procedures, you should build a team with which to collaborate. Seek internal guidance from colleagues in procurement, risk management, IT and other related disciplines. Solicit ideas and best practices that have helped them achieve results in the past. 

Externally, engage your outside counsel and vendor partners in a dialogue about their roles. Study the tools they use and seek opportunities to realign your usage with what they offer. Identify which firms are handling what matters. Revisit their philosophy, track record and level of efficiency. Determine whether there is any overlap either between outside counsel firms or between vendor partners and law firms. Take the opportunity to reestablish your guidelines on billing, expenses and preferred relationships. 

In the end, it is the people, process and technology that make a law department successful. If one of those components is not operating at its optimal level, the results will suffer. 

Assign the task of taking stock over the summer to a trusted member of your team who is accountable to a senior executive. Require documentation and a deliverable that will set forth a plan of action to execute during the third and fourth quarters of the year. That plan could prompt a critical cultural shift that helps you save money, more effectively leverage your talent and accelerate your level of achievement.

George Kiersted is President of Kiersted Systems. With an extensive background in information technology and application development, he identified the need for the special application of IT to the law and litigation sector more than two decades ago. Since the founding of Kiersted Systems in 1984, he has built the company into a proven leader by providing advanced technology services to law firms and corporate legal departments. The services offered include electronic discovery processing, forensic data collection, hosted review services and consulting related to matter management, electronic billing and legal hold. 

Kiersted has offices and data centers in Houston and New York City. For more information, visit www.kiersted.com.

Please email the author at gkiersted@kiersted.com with questions about this article.