This post is based on remarks recently delivered during the 12th Annual University of Florida E-Discovery Conference. With only 10 minutes during the conference to squeeze in this massive topic, we thought it may be useful to expand on those remarks here.
Imagine that a 500-person manufacturing company is sued (for our purposes it doesn’t really matter what for) and they reach out to their outside counsel. The attorney must preserve relevant information and implement a legal hold. And like many practitioners today, the attorney jumps right in and asks the company, “Who has the relevant documents” and then tells the company’s general counsel to “send the documents to the firm.” All in a day’s work, right?
It seems like a smart first step to preserve the relevant information. But there are so many things wrong here. What happens next is that documents are lost, electronic data is altered, or worse, destroyed; the lawyer gets caught up in discovery motions, sanctions follow, and well, you know how the story goes.
Run a simple query in any legal research database and you’ll find that the cases on this are legion. There are literally thousands of cases.
It does not have to be this way! There are simple, proactive things you can do to prevent safeguard against preservation issues. You need to simply take the time to properly scope your project.
What is Scoping?
Think of scoping as a blueprint, a checklist, or a grocery list. My wife used to write a shopping list and hand it to me, and I’d sit down and rewrite it. She’d look at me like I was nuts and say, “What are you doing? I wrote out a complete list for you.”
“I’m scoping,” I’d say. You see, I’ve been to the store so many times that I pretty much know where everything is. What I was doing was rewriting the items on the shopping list in the order of the aisles in the store so that I’d only have to make one pass through the store.
Another way to think about scoping is a bit of a Yogi-ism: In order to get somewhere, you have to know where you’re going.
So, how would scoping have saved our somewhat sloppy attorney in his effort to properly preserve information relevant to the lawsuit?
We’ll come back to this question in a minute.
The Importance of Scoping
First, it is important to emphasize that if there is one thing that e-discovery professionals need to get right to ensure a successful outcome for their client –it doesn’t matter which side of the “v” you are on—it is properly assessing the nature and substance of a case or investigation at its outset and planning for the e-discovery processes that follow.
The Project Management Institute defines scoping as the process of identifying the work required to meet a project’s deliverables, the activities to be performed, the resources needed, and an understanding of what the finished product or service looks like. This includes managing change, and quality, and of course the cost and schedule to ensure the project stays on time and within budget.
To scope any project, you must:
- Define what’s included (and not) in a project: First, it’s important to clearly define what’s in scope and what’s not in scope on your project. What are you doing and not doing?
- Gather specific requirements: Next, make sure when you are gathering requirements that you identify specific details so there’s no room for dispute.
- Consider project constraints: Remember to note budget, schedule, deadlines, any internal or external resource constraints, and environmental factors in the scope statement.
- Proactively manage risk: Finally, often we dive into our work and neglect to plan for essential things and unexpected events—just like the attorney in our little fact pattern above. Projects change, quality issues arise, communication and stakeholder management are legitimate concerns, and we don’t always consider these things in advance. Instead, we wait and see what happens and react accordingly. It should not be this way. By proactively considering basic questions like “What can go wrong here?” at the outset of a project, we can easily identify changes, improve quality, and enhance communication issues.
It does not matter how expert your team is, what technology you are using, or even if you think you have the facts and the law on your side. What may seem like a straightforward project can go sideways if the scope expands or contracts. And after all these years in e-discovery, every one of us should now know that e-discovery projects rarely go exactly as planned.
That’s why it is so essential that you have a scoping process. The reality of working in e-discovery is that there’s a handful of things you need to get right, particularly in the early stages of a project, to bring about a successful outcome. If you do these things, you will be able to marshal the resources and get the job done.
The Process of Scoping
Now, project management principles provide a great framework for work in almost any industry. But working in e-discovery can be less predictable than other industries. So, let’s talk about the process of scoping – those things that need to happen to ensure success.
Assemble the team: First and foremost, make sure you have assembled the right team. Obviously, there’s the client, the lawyer, maybe a litigation support professional. My experience is that neither the client nor the lawyer is going to do the bulk of the work here, so make sure a junior lawyer or paralegal from the client is involved. The client’s IT personnel are essential as well. Make sure your own IT professionals, junior lawyers, paralegals, and support personnel are all involved in initial discussions about the e-discovery project. You may need input from compliance officers, data privacy professionals, or departmental managers. And you may also need a highly skilled technician, like a forensic expert or a data scientist. Some projects are more complex than others. Regardless, get everyone you need on your team together early and often. Hold a project kickoff meeting.
Marshall the resources: It’s easy to know what resources you have at your disposal. These are your people, processes, and technology. But what about the client? What about their IT team? How about your adversary? Knowing everyone’s resources and capabilities gives you the context you need to make decisions – i.e., the best decisions for your client.
Requirements gathering: Beyond gather specific requirements, as noted above, ask yourself one simple question: “What does done look like?” From there, you can easily work backward to identify all the activities and the resources you need for your project.
E-Discovery Scoping Requirements
Now, looking back at our preservation scenario, our lawyer here told the client to “send the documents.” Well it shou surprise no one that people within the corporation took their time, there wasn’t adequate follow-up, the legal hold notice did not get to all the right people, if it went out at all –yes, that still happens a lot; read the cases—and documents were lost or destroyed, yata, yata, yata – and suddenly, “Houston, we’ve got a problem.”
Given this scenario, what are the handful of things that should have been done to achieve a successful outcome here?
There are at least five basic steps that could have been deployed to mitigate against the issues faced here:
First, gain a complete understanding of the client’s information systems. It’s not just who has documents, please send them over. In the project management world, we break things down into their smallest components using a process called “decomposition,” which results in a “work breakdown structure” detailing each of the tasks necessary—all of the work to be performed.
- What information does the client have?
- What is relevant and what is not relevant?
- Where is the information?
- Who controls it?
- How do you get to it?
Second, don’t take the client at face value, conduct custodian interviews. This is an often-overlooked step in the process. You can learn so much from talking with custodians. And take the time also to talk with the IT personnel to better understand the client’s systems.
It’s important to remember that everything you do and learn at this stage of the matter is going to impact everything you do later.
Third, identify and memorialize (1) the client’s specific sources of information, and (2) the names of the custodians.
Next, take steps to ensure that the custodians, appropriate leadership, and IT personnel are provided with a formal legal hold notice that (1) explains the substance of the claims in the action, (2) identifies potentially relevant topics, (3) lists the types of information sought, (4) provides a person to contact with questions, and (5) has a means of confirming receipt of the legal hold.
Finally, make sure that the client is preserving, not destroying, any relevant information, and that they stop any retention or disposition policies that cause information to be moved or deleted.
This is how you scope the identification and preservation of information in an e-discovery project.
Obviously, this is just one part of an e-discovery project. But we have checklists for each of the substantive areas of an e-discovery project available for download on our website.
As you can see, the proper scoping of the early stage of an e-discovery project is largely asking a series of important questions and then executing several steps to ensure that relevant information is preserved. It’s not terribly hard to do, and if you document the process as you execute on it, this equates to the reasonable inquiry that is required by the applicable rules and case law.
A similar process may be designed for each subsequent stage of an e-discovery project.
Conclusion
The point here is that using the scoping process outlined here, asking a few questions in advance, executing simple tasks, and proactively thinking about managing the risk of something going wrong, is going to result in greater efficiency, reduced costs, and successful outcomes for your clients.
And one last word about documentation. Throughout each of these processes –from information governance through production—you should be documenting your activities and memorializing any issues that arise. If you are scoping your project properly and you really want to develop a sound, defensible process, create templates for your project documentation and get in the habit of using them on every project.
