Mind Over Data: Defensibility and flexibility are the heart of discovery project management

Friday, July 17, 2015 - 12:20

MCC interviews the Managing Director of RVM Enterprises, Inc., Salvatore Mancuso. A leading expert on project management, he discusses the evolution of the PM profession and key considerations for corporate counsel engaging outside discovery consultants. He can be reached at smancuso@rvminc.com.

MCC: Please describe the role of a project manager.

Mancuso: A project manager (PM) serves as the liaison between a client’s needs and obligations as they relate to a particular discovery matter and the delivery of our work product. PMs are responsible for shepherding communications, both externally with clients and internally among operations and service personnel.

At RVM, we differentiate ourselves from a consulting standpoint. Our PMs bring a variety of backgrounds. Some have worked at law firms or in-house for a company, and others have joined us right out of law school. Their work extends beyond managing the set of protocols and procedures required to push along a planned workflow and make a deadline. Our PMs also provide guidance, issue spotting and custom workflows. There’s more to the conversation with us inasmuch as clients share strategy and substantive legal concepts concerning a given matter.

MCC: How does today’s project management differ from how it was handled before the 2006 amendments to the Federal Rules of Civil Procedure?

Mancuso: Well, for better or worse, I can say that I've experienced that evolution firsthand. When I started out in the industry back in 1988, project management extended the role of a legal assistant, essentially to include some basic technical skills. PMs worked predominantly on the legal side to support the needs of attorneys and, ultimately, their clients.

Over time, project management has evolved into more of a discipline. It borrows from the Project Management Professional (PMP) and Six Sigma methodologies and requires being well-versed on the legal side while still being a technologist. In today’s environment, the latter qualification requires going beyond basic technical skills and into a deeper understanding of networks and infrastructure – being able to speak to how data is created, to the systems that create that data and to the policies that govern that data. Issues are often raised throughout discovery, and knowing how the technical side plays out can have an impact on legal strategy.

Project management also requires pure business skills. I preach to my PMs that they should work like independent business managers: each matter should be treated as a new entity, where they're not only looking to develop a client-centered and creative solution but also to manage the overall budget – really keeping an eye on goals and costs.

Frankly, it all starts with common sense, which is often difficult to find. You have to be able to step back and ask simple questions. Why are we doing this? What’s our goal and timeframe? Sometimes, finding the right answers is a matter of dialogue, and in the end, the best solution may not require sophisticated technology.

MCC: Do amendments to the FRCP affect RVM’s approach to project management?

Mancuso: We always keep the big picture in mind, and defensibility is a constant theme throughout our workflow. First and foremost, we want to ensure that clients are meeting their obligations under the most current rules in terms of preservation and data collection. From there, we ensure clients are aware of any flexibility, as allowed by the current rules and depending on whether the client is the responding or receiving party. As responders, they need to know, at minimum, what they need to produce and the format in which they need to produce the data. Most fail to realize that there is a choice. RVM helps requesters understand that they can be quite strategic in defining what they are looking for and in understanding how the responding party manages data.

MCC: Would you say that the overall objective of rule change is to make discovery more manageable for both sides?

Mancuso: Absolutely, particularly with the advent of analytics and the wide acceptance by the judiciary – and the support of influential organizations such as The Sedona Conference. The push is toward gearing discovery to the specific merits of the case and away from both the challenges of dealing with data and the implications of not handling it properly. If you take an approach to discovery that “less is more,” then from that point forward you can proactively and effectively explore with adversaries what they actually are looking for. 

It’s interesting because even before we get to the data processing and review phases, some of our clients have been able to invest just a little money upfront in seeking our guidance to identify, first, whether they have good standing in a matter, meaning their arguments are so strong that they should be looking to settle early on. If it turns out that they need to move forward with a full-blown litigation, then they are still better off if they’ve pre-established what they are collecting and from whom.

We still see that a wide net is being cast on the collection side, which is unfortunate. Often during the discovery process, clients find that their culling percentages have been so great, and so much data has fallen out of play, that we as the service provider wonder, "What were they thinking when they were collecting?" I certainly see the rules pushing toward proportionality based on the merits, but I also see the judiciary and organizations such as The Sedona Conference making a welcome push in that direction.

MCC: What has been the impact of rule change on service providers?

Mancuso: We are left with very little wiggle room and a strong mandate to proactively manage expectations. It’s extremely lean, and we need to be on our game right from the start. When you are working at a law firm or on the corporate side, you know your terrain and who your constituents are; however, on the service side, our clients vary in sophistication and levels of experience, which may be inadequate given the matter at hand. So our rule is: question before you answer, and don’t take as a given that a client has already figured out the way to go.

MCC: What are your thoughts on project manager certification? Has it affected your hiring practices?

Mancuso: Before the amendments, certification focused almost exclusively on specific technologies. There was no curriculum to generate the PMs of the future, so the process very much depended on managers. In essence, you were only as good as the folks who managed you.

Today, stronger efforts are being made by educational institutions, such as Georgetown Law Center with its annual eDiscovery Institute and Bryan University. I am personally working on a distance learning project that will benefit all eDiscovery professionals and is mainly geared toward project management. Some classes offer certification, not only for eDiscovery project management but also for paralegals who want to complement their existing careers with some element of eDiscovery.

Other organizations are joining in this effort. The Association of Certified E-Discovery Specialists® (ACEDS) and its Certified E-Discovery Specialist (CEDS) exam come to mind here. Interestingly, the idea of that certifying body as a for-profit enterprise originally raised concerns in my mind, certainly as to objectivity. In fact, there was a time when I was completely against certification. I questioned whether the right people were developing the curriculum or whether the certification criteria would meet my needs, but today’s programs have evolved and matured quite nicely, and it’s something we now look for in our hiring practices. The certification doesn’t need to be comprehensive, but we like to see candidates going the extra mile to standardize what they know.

MCC: What are some baseline considerations for corporate clients in determining what they need from a project manager?

Mancuso: From an audit standpoint, corporate clients will want to ensure that the service provider is maintaining defensibility in terms of the integrity of the data throughout the entire process. In practical terms, this means that the sum of the parts should always equal the whole. If, for example, a Microsoft Office mailbox is 1 gigabyte in size and contains roughly 10,000 records, the service provider should be able to account for every record and, if challenged, prove that all records have gone through the culling process. Some will end up in the population of documents for further review and are easily tracked, but a good service provider will also be able to account for what fell out based on the defined culling criteria and, separately, be ready to speak to any exceptions – an important facet.

Next, corporate clients need to make sure they are dealing with subject-matter experts who can not only handle the process but also testify that it was done correctly. Third is pricing. Is the provider amenable to alternative fee arrangements, depending on the situation? My goal as a service provider is to fulfill these expectations in avoiding pitfalls and working efficiently, and RVM achieves this by helping corporate clients navigate and make good decisions. A typical conversation might go like this: “Before you send me a hundred custodians’ worth of email, let’s talk about the key individuals and look at that data, and from there, see whether we need to collect from all hundred.” RVM recently did just that and cut more than 100 custodians down to fewer than 30 through open and clear conversations with our client, allowing potentially dramatic cost savings.

The fourth consideration is technology. Is the service provider innovative and willing to become an extension of your law department by stepping out of the norm, bringing expertise to the table that otherwise would be lacking, and creating a suitable solution for your unique set of needs?

MCC: Give us the broad view on how RVM delivers value.

Mancuso: We go back to the fundamentals of the legal process, meaning good old-fashioned fact development and, really, remembering that eDiscovery is just discovery. It’s not lost upon us that RVM’s existence depends on our ability to justify arguments as both defensible and meaningful. The key lies in putting ourselves in the shoes of our clients and thinking outside the box. It certainly helps that we manage client expectations and the budget, but it also grounds us in a client’s need to seek our services in the first place. Providing excellent service is what it’s all about at the end of the day.