The problems are well known: ever-increasing data volumes; emerging data sources; underutilized eDiscovery technology tools; and insufficient documentation. Process innovation is a key part of the solution. Workflows, technology and people are integral to reinventing and improving your eDiscovery processes.
That was the main takeaway of the recent panel presentation “Reinventing eDiscovery for the AI World” by the Chicago Chapter of ACEDS. The panelists were Christine McKinney of Navistar Inc., Christine Payne of Redgrave LLP and Sean Byrne of Byrne Law. The panel was moderated by Doug Kaminski of Cobra Legal Solutions LLC.
The panelists recommended starting with a gap analysis. Identification of outright gaps in existing processes is the obvious starting point. The analysis should identify additional areas for improvement, like outdated or inefficient processes.
Focus on these areas to evaluate both current processes and proposed solutions:
- Quality of result – First, good processes promote compliance with litigation holds, regulations and other legal obligations. Second, they increase efficiency. Third, they foster collaboration within the organization and with outside counsel and service providers.
- Defensibility – Processes in eDiscovery must be defensible. In addition, decisions and actions must be documented for internal tracking and to respond to spoliation and other defensibility-related allegations.
- Cost and value – Processes should be cost-effective and meet the organization’s needs. Standardizing processes lowers costs associated with employee turnover.
Technology tools can be a valuable resource for process improvement. Two common technology tool types are legal hold software and email archiving solutions.
When investing in technology tools, the panelists strongly cautioned against a myopic focus on the up-front price tag to the neglect of other considerations. That noted, when evaluating cost, you also need to take into account long-term software maintenance, hardware upgrades, hiring additional employees to manage the tool and one-time implementation costs, which can be considerable.
All the panelists – representing the in-house, outside counsel and consultant perspectives – emphasized the importance of being strategic in implementing process improvements. It’s important to tailor your approach based on the client’s goals and culture. This includes educating employees in the specific legal and business needs driving the project.
Successful implementation will benefit their employer and add value to their own day to day work. However, in the short term, change is hard. To make it as easy as possible, start by getting to know the stakeholders – both those leading the charge for the process improvement and those responsible for using the process every day.
People are critical to process implementation. You need sufficient staff to handle the workload. You also need employees who have the necessary skills and experience. Depending on the project’s scale, complexity and technical requirements, you may want to bring in temporary employees or consultants to assist with installation and training.
The panelists offered several other constructive suggestions for effective implementation. Respect the competing demands on employees’ time. Enlist key employees to be early adopters; they will be invaluable advocates within the organization. Whenever possible, give positive feedback.
Finally, strategic implementation takes into account the impact on other corporate systems and programs. McKinney gave a candid example from Navistar’s implementation of an archiving solution. The process improvement solved an urgent problem, but it also created unanticipated new challenges. These could have been mitigated if the implementation team had fully evaluated the broader impact on the company’s information governance.
Process standardization and predictability are always important to businesses. Defensible, cost-effective processes are critical in litigation. For law firms and service providers, eDiscovery processes are a key differentiator in this crowded marketplace. Now that the same great technology is available to everyone in the industry, it’s increasingly difficult to compete on technology or price alone.
Process innovation is a key part of the solution for eDiscovery problems created by high data volumes, emerging data sources and underutilized technology tools. Having good processes in place is also critical to prepare for tomorrow’s challenges. The ACEDS Chicago presentation made a convincing argument that it’s time to move process off the backburner.