Editor: There has been quite a bit of attention paid to the changes to the FRCP rule amendments passed in December 2006 on the process of e-discovery in litigation cases. You work with many attorneys - what would you say the greatest impacts of the new e-discovery rules are on your clients?
Melchionda: In terms of the greatest impact three words come to mind: fear, complexity and acknowledgment. But, I don't think it has to be this way; there are many ways to approach a project. The first step is to acknowledge the complexities and take charge of the situation through a project plan. The plan is required for those who are dealing with e-discovery proactively, either on the firm side in partnering with e-discovery vendors such as EED, or their consultants, or those corporate law departments that may decide to create their own in-house technical, legal, and project management expertise. The latter is more difficult to fully vet due to a number of issues such as sourcing (i.e. finding experts), hardware, team building and planning.
Editor: You have recently authored a white paper on the subject of a Project Management Approach to e-discovery. What prompted you to write this paper? Was there a problem or a need that was not being addressed?
Melchionda: I think it comes down to there being so much complexity around e-discovery, and I break it down into four points. One, the key challenge to a successful project outcome in e-discovery is the alignment of three plus organizations with very different cultures. At the basic level you have the corporate client being sued, the law firm providing a contractual service and the e-discovery vendor. The fact is that e-discovery is the sub-project of a legal project called a litigation defense. In the end the e-discovery sub-project is subordinate to the higher level project goals of that litigation defense and the objectives are not always visible to all members of the discovery team, including the e-discovery vendor.
The number two reason for authoring the white paper was that project management, meaning the details of how to specifically complete a task as a whole, has not been agreed upon in our market space with enough detail. My experience with managing discovery projects, using tried and tested project management tools and learning from some of the smartest and most creative minds in our space, pushed me to write a paper that is progressive and aggressive yet simple enough to rely on to optimize any discovery project.
The third reason for writing it is the threat of sanctions, both monetary and case dispositive, for the corporate client. As we have seen in recent cases, it remains a great danger to companies and their counsel who do not handle discovery properly.
Lastly, I hope it begins to encourage a discussion in our marketplace, whether at trade shows or with our clients, to collaboratively agree upon project management standards. When I look at project management and how it relates to e-discovery, the leading organization for project management professionals is called the Project Management Institute. The Institute defines project management as the application of knowledge, skills, tools and techniques to a broad range of activities in order to meet the requirements of a particular project.
Whether you are managing the development of a new piece of software or maybe a revolutionary new aircraft or even an e-discovery project, you really have to work through a phased approach broken down into five project management principles. Those are: initiate, plan, execute, monitor and control, and then finally closure. In terms of when you take a step back and look at the project management approach to e-discovery, it is really quite simple. In effect the e-discovery process from collection to production is treated as a single large project with sub-projects representing each significant discovery phase: collection, process, review and production. Each of those four discrete discovery phases can be broken down even further into their own sub-projects. For example, our founder, John Jessen, created a fourteen phase methodology for the e-discovery process. With methodology you can create an approach that not only ties back into our technology, but to the project management-phased approach and utilization of the tried and tested tools available to a project manager. What is interesting is that during the years of quality improvement initiatives and project planning, there are now over four hundred tools available to a project manager and quality specialists that they can actively put toward optimizing a discovery project.
Editor: It must be hard to choose among the tools.
Melchionda: It is very hard to choose, and when I was at the ABA tech show recently speaking about a project management approach to e-discovery, I started the conversation by explaining that this is a primer for reviewing what is project management and what is specific to a project manager's toolbox that could help e-discovery. There are many different tools available and I went on to show and even display how those tools could, in effect, help optimize the e-discovery process.
Editor: Businesses have been using software tools, email and the Internet for years. Why the great increase in attention to e-discovery issues in just the last couple of years?
Melchionda: I think that the issues have always been there but these days they are just bigger in terms of risk coupled with high effort, high volume, and high cost. If you look at some of the numbers - 183 billion email messages being sent a day, 97 percent of all new business information being created in an electronic format of which 60 percent to 70 percent are attached to email - it is mind-boggling. Our recent cases have been very complex as compared with e-discovery years ago. We are seeing: (1) high risk cases; (2) millions of documents; (3) hundreds of email custodians; (4) complex matter and terminology, such as foreign languages; (5) urgency of the project; (6) the total cost of e-discovery projects - now averaging $250,000 and above, and (7) the average length of the project itself, including the review, being seven months. Altogether this represents a fairly significant mission critical sub-project of the larger litigation defense.
Courts continue to impose sanctions including monetary (attorney's fees and costs), adverse inference and in more recent cases, the threat of incarceration which can apply to parties and attorneys for failure to comply with e-discovery requirements, even in the absence of bad faith.
Editor: The cost of review of large volumes of data is a big concern to corporations and their counsel. What trends in technology do you see that will help reduce the cost of e-discovery?
Melchionda: I see the trends in two parts. One part involves greater management and insight into the client's processes. The second involves technology to help speed review and increase accuracy with better culling techniques. The largest strides are in the area of data selection, including content analysis and clustering technologies for deduping, allowing easy comparison of similar items, and allowing tagging, redaction and annotation. We have a new client portal that provides a significant level of insight into our client's processes called DPX, Discovery Process Excellence. It is essentially a secure client portal that provides clients with quick and easy access to information they need to track their project. Technology speeds review and accuracy and enhances review optimization.
Editor: Would you say that project management processes are really geared for just the large-scale litigation cases?
Melchionda: Absolutely not. I think any size project can be attacked using project management methodologies, principles, and tools. In actuality, a smaller project with less hectic time frames could be a perfect project to launch a new initiative based on these project management principles that may be new to the firm or client. They will allow a manager to work through a program and define it to his particular needs on a smaller scale.
Editor: In your role for Electronic Evidence Discovery, you manage similar projects. Does EED typically provide a Project Manager for your client's e-discovery projects?
Melchionda: Mostly yes, but in some cases we do not as some consultants work directly with our clients. For example, they consult on data-driven analytics to optimize and decrease the cost of review and they can be brought in to advise on a number of issues such as what data should be preserved, what data should be collected, what is the best way to negotiate e-discovery with opposing counsel.We also go so far as to partner with our clients to help represent their clients in court with expert testimony on their e-discovery strategy.
Editor: You have described the role of the Project Manager and the 'mission critical' importance of e-discovery, and as a Project Manager, you have found yourself in the role, sometimes, of translator, arbiter and mediator in negotiating project schedules in a stressful situation. If you think about the 'ideal' way to run an e-discovery project, what advice would you give the project team to make sure the project succeeds?
Melchionda: E-discovery is a very complex mission critical sub-project of the larger project, the litigation defense, and the e-discovery vendor is delivering a sub-project that affects the whole defense: timeliness, data and review efficiency. Large projects require multi-tiered resources across numerous entities. In the end the cost of poor quality is significant in terms of wasted time and effort which equals money, significant risk, sanctions, and adverse inferences.
So a few key points to emphasize to execute an ideal e-discovery process: I think it is important for one to educate themselves; poorly informed views on time and scope equals unreasonable expectations. This means that up front they should be asking questions on how the process works, why is it important, how much time does it take, and so on. This is so that you can help to build into your own processes and your own communication timelines. The second bit of advice is to make a resource assessment; capabilities of the vendor are not the only part of the project. For example, do you have sufficient resources to manage your project? Will you be able to handle collection management from the client's site? Are you going to be able to manage your review strategy with your management? And what about quality control? I think it is important that we pose the question in the light of all the various components and parties involved in the e-discovery sub-project and that we discuss who the real project leader is. This is helpful when identifying the roles in a three plus company project team associated with an e-discovery project. Is the associate attorney the real project manager or the defending attorney for the corporation who must speak to its data defenses and their protocol? I think the triangulation of the law firm, corporation, and the e-discovery vendor is a very unique, very complex model. In the end what complex challenges do all these questions impose on project management? Meaning that those three to four entities on a typical e-discovery project need to have the task clearly stated at any given time while having those entities available to furnish input when something goes wrong. And finally I think it is important to follow a plan while using tried and tested tools. The white paper goes into how we can utilize these tools and build them into our e-discovery process. If you would like to have a copy of this work, please contact me at the e-mail shown below.