People traveling in the United States today may find it difficult to imagine it without the Eisenhower Interstate Highway System. It was not until President Eisenhower signed the Federal Aid Highway Act that interstate highways began to meet the challenge of the growing number of automobiles on the nation's highways.1 Once the infrastructure was in place, it was just a matter of time before the volume of cars on the road exploded. Similarly, few of us can imagine life before the PC, the Internet, email, and instant messaging. Now that we have everything, including our businesses, running on the Information Superhighway, the volume of electronic information being collected, moved and accumulated has also exploded.
In light of this, it is crucial that companies in pre-trial litigation conduct a quality discovery process to meet document production deadlines, eliminate potential sanctions, increase control in case negotiations, and have a better chance for favorable litigation results. What's more, it can add up to savings that can run into the millions of dollars.
How do you guarantee quality in the discovery process? Barrasso Consulting has identified parameters within which a quality process in discovery can be structured and measured. We call this "Discovery Q5". The key elements are Cost Efficiency, Management, Punctuality, Accuracy, and Defensibility.
Q1 - Cost Efficiency
There is no doubt that everyone involved in litigation, from corporate executives to paralegals, worries about the expense that goes along with discovery. There is simply no way to eliminate the high cost of collecting, processing and reviewing millions of documents. But managing a quality discovery need not cost more. Instead, as good manufacturers know, the right people, processes and technology combine to increase quality while lowering costs. One thing is for sure - quality discovery is less expensive than repeating steps, receiving adverse judgments, negotiating an unfavorable settlement, or losing the case.
Opportunities for reducing cost are present long before discovery begins. A sound records management process, for both paper and electronic documents, is the first step. Although records management is sometimes perceived as expensive operational overhead, a solid records management program can more than pay for itself by drastically reducing any future discovery process.
Once discovery is inevitable, concentrate on building (and working with) the right team, developing a quality process, and leveraging technology. Flexible project staffing allows for optimal experience and minimized expense. For example, a well-trained and supervised temporary document-review attorney is less expensive, and often better suited for review, than a law firm attorney with a billable-hours requirement and varying work responsibilities. Advances in litigation technologies improve the discovery processes everyday and can significantly reduce the cost of document handling. Case managers experienced in the use of technologies such as electronic discovery management, on-line redactions and search-assisted reviews have the ability to manipulate millions of pages of documents at a desktop, saving time and money. And a solid and thoughtful workflow and management process - from document collection to document review - can reduce discovery costs at every turn.
Q2 - Management
While a well-managed discovery process does limit costs, effective management provides further value, for example, coordinating multiple deadlines. For starters, the discovery process requires process design and planning experts who thoroughly understand the discovery process. Discovery is complicated, and every case has its own nuances, so a project planning team that can partner with the client, guide it through the intricacies of the project requirements and discovery-process choices, and map out the longer-term implications of each process is invaluable.
Once the project requirements are established, an experienced project manager develops the critical path analysis for project planning all the tasks to be completed during the discovery project. This includes a detailed plan implementation, setting schedules and milestones, and understanding the resource requirements. It also includes developing the methodology to monitor progress against project goals and internal and external communication to make sure all parties are apprised of status and any changes in objective. These factors are crucial to meeting project milestones within budget and on time.
Since much of the discovery process is highly repetitive, meticulous and strict, the backbone of quality production is operational flexibility. Quality production requires the ability to react to refinements and changes in production priorities, quantify deviations from the original plan and implement process changes on a dime, all the while retooling ongoing production and documenting process changes. Acknowledging and documenting the lessons learned in every case is important for defensibility; also intelligence collected remains at the disposal of the team and can be reapplied to future cases.
Quality discovery also depends on process controls, job training, and performance measurements and management. Proper quality control work done correctly the first time reduces costs and avoids unnecessary and expensive re-reviews and re-processing. Quality of output is also facilitated by "soft" elements, such as integrity, confidence, motivation, and team spirit. All are fostered by a management team that approaches quality with an open mind, and continually functions to improve systems and processes.
Q3 - Punctuality
Discovery is deadline driven. It is important not only to produce a quality product, but also to meet project milestones. The importance of coordinating communication efforts to set up-front expectations about delivery, and then forging an agreed-upon delivery plan, cannot be underestimated. Likewise, coordinating and communicating expectations to all parties when plans change is just as crucial.
Essential to punctuality is the development and ongoing refinement of production "levers" that can be switched on to meet client expectations in the initial project plan, as well as during any point in the discovery or litigation process as the scope of the litigation changes. These levers include strategic resources, workflow planning and advanced use of technology. Productivity metrics, derived from workflow statistics applied from previous experience, will allow the shifting of resources to meet the needs of shifting project priorities. By adding the expert use of technology tools for appropriate projects, such as performing an automated wide-scope document search for privilege, the tightest deadlines may be built into the process right from the start. As always when working with technology, it is essential to appreciate both the advantages and the limitations of any particular software package or technique.
Missing deadlines in discovery can be damaging. Not only can sanctions result, but missing deadlines is a good way to test the faith of judges and adversaries. And there is little grey area: Either you meet the deadline or you don't. Quality discovery meets deadlines.
Q4 - Accuracy
Document collection for simple litigation can easily involve more than 50,000 pages. Large, complex litigation can run into 15-20 million pages or the equivalent of between 7,500 and 10,000 boxes of documents. Maintaining accuracy while collecting and reviewing all these documents is crucial, not only for a successful case outcome, but also to avoid sanctions and limit costs. Documents collected and documents reviewed must be relevant and on-point. Over-collection of documents adds additional costs from the physical collection and reproduction process, and also from the additional cost related to an expanded review process.
Document discovery is a multi-tiered process, which includes finding the documents and managing the responsibilities associated with preserving the relevant ones. Again, it is important to understand the laws of a particular jurisdiction with regard to the duty to preserve while developing a collection and review plan. Penalties for underproduction can range from a slap on the wrist to more meaningful sanctions. Penalties for failure to preserve are often severe, and can include awards of costs and attorneys' fees, or even partial or total summary judgment.
Prior to starting the physical document collection, a methodology for document preservation, chain of custody capture and inventory control must be formulated for the specifics of the case. It is also essential to review with the custodians (the employees with records pertinent to the litigation) their policies for storing their information. Once the overall collection methodology is determined, then the actual collecting can begin. Since an attorney typically must review every page collected for both case responsiveness and privilege, a more accurate document collection reduces costs substantially.
The document review process is also multi-tiered. Guidelines for document subjective coding, attorney selection and training, setting priorities and instituting quality control processes should be established before the first document is reviewed. Attorney training should include case overview, document pattern recognition, and various other cognitive techniques to ensure proper coding of documents. Potential inaccuracies in the document review process can result in a loss of attorney-client privilege or revelation of sensitive case information or trade secrets to adversaries, so attorney selection, training and monitoring is of utmost importance.
Each of these processes requires an optimal balance of speed and accuracy for the matter in question. Standardized operations control processes and monitoring of production metrics ensure that flexibility in the production process can be achieved while maintaining the necessary accuracy.
Q5 - Defensibility
Should judges or adversaries raise concerns about productions, it is important that they understand that problems are not endemic and that procedures are sound. Any quality discovery process should have built into the process the ability to defend all aspects of the overall document production.
All selection and review methodologies employed in managing the discovery process should be thoroughly documented. From the requirements-planning process through the critical path analysis for document collection and review, required audit trail and compliance documentations must be in place. Most commonly overlooked is documentation of post project-implementation changes to scope, processes, or other aspects of the litigation that may occur. For each stage, documentation defends the reliability of the discovery process and helps to prevent potential sanctions.
A quality discovery process also has integrity. It is important to be able to demonstrate to adversaries - and the court - that procedures have been designed, implemented and managed in order to produce the proper documents. There are always opportunities for documents to go unnoticed until someone stumbles on them during a deposition. However, integrity in responsiveness and open dialogue about production methodologies helps to reduce adversaries' ability to raise doubt about the process behind any document being produced or omitted.
Measuring quality in a discovery project can be difficult. However, understanding what aspects of quality best expedite the discovery process is a good way to ensure the process is pointed in the proper direction. As with any large-scale operation, proper planning, processes and management help to ensure quality remains a top priority. Simply put, a team that manages your project with an emphasis on Discovery Q5 will ultimately deliver a quality discovery result. 1 www.eisenhower.archives.gov/dl/InterstateHighways/InterstateHighwaysdocuments.html
Diane Barrasso is founder and president of Barrasso Consulting, a firm that specializes in the management, collection and review of discovery documents. Lorraine Venesky is senior project management at the firm.