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Lean e-discovery: managing the e-discovery with leaner legal teams from review to redaction from IGC and Atidan

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At the end of 2008, 75% of law departments surveyed in the Altman Weil Flash Survey on Law Department Cost Control said they were facing budget cuts in 2009. In fact, nearly one-third reported that …

At the end of 2008, 75% of law departments surveyed in the Altman Weil Flash Survey on Law Department Cost Control said they were facing budget cuts in 2009. In fact, nearly one-third reported that those cuts would include layoffs of support staff and attorneys. Today, many departments are avoiding further legal team layoffs by doing more in-house, reports Altman Weil’s James Wilber, a principal and senior law department consultant at the company.i
While this trend forces legal departments to take on larger roles, both to maximize limited internal resources and to reduce their reliance on outside counsel, it underscores the importance of an interdisciplinary team and effective project management. Organizations that fail to incorporate those two critical factors are certain to further erode their talent pool and ineffectively combat the cost crisis.
That crisis prompted an in-house lawyer to recently comment, “You can't sneeze in modern litigation without spending a couple of million dollars.” Expenses have adversely impacted so many organizations that the Association of Corporate Counsel started The Value Challenge initiative to foster a cross-disciplinary discussion between in-house counsel and their law firm counterparts about legal costs and alternative billing.ii The foundation for that campaign is collaboration and a community-oriented approach to team-building.
The reason this is such a critical concern: the number of in-house lawyers is shrinking, but legal departments are mandating that those who remain “insource” more of the discovery process. While technology is a natural way to drive efficiencies, there is a perennial fear that the work product will be substandard. Legal departments must find the right technology to increase efficiency, speed processes and increase reliability.
At this watershed moment in legal history, corporate counsel must work better, faster and cheaper. This white paper will identify proven methods for team-oriented lawyers to enhance project management, streamline logistics, and incorporate technologies like electronic redaction, which have a measurable and immediate return on investment.

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  • 1. Leane-Discovery:Managing the e-DiscoveryProcess with Leaner LegalTeams from Review to RedactionBy Gary Heath, CEOInformative Graphics Corp.
  • 2. e-Discovery with Leaner Legal Teams IGC White PaperOverviewAt the end of 2008, 75% of law departments surveyed in the Altman Weil Flash Survey on LawDepartment Cost Control said they were facing budget cuts in 2009. In fact, nearly one-thirdreported that those cuts would include layoffs of support staff and attorneys. Today, manydepartments are avoiding further legal team layoffs by doing more in-house, reports AltmanWeil’s James Wilber, a principal and senior law department consultant at the company. iWhile this trend forces legal departments to take on larger roles, both to maximize limitedinternal resources and to reduce their reliance on outside counsel, it underscores theimportance of an interdisciplinary team and effective project management. Organizations thatfail to incorporate those two critical factors are certain to further erode their talent pool andineffectively combat the cost crisis.That crisis prompted an in-house lawyer to recently comment, “You cant sneeze in modernlitigation without spending a couple of million dollars.” Expenses have adversely impacted somany organizations that the Association of Corporate Counsel started The Value Challengeinitiative to foster a cross-disciplinary discussion between in-house counsel and their law firmcounterparts about legal costs and alternative billing. ii The foundation for that campaign iscollaboration and a community-oriented approach to team-building.The reason this is such a critical concern: the number of in-house lawyers is shrinking, butlegal departments are mandating that those who remain “insource” more of the discoveryprocess. While technology is a natural way to drive efficiencies, there is a perennial fear thatthe work product will be substandard. Legal departments must find the right technology toincrease efficiency, speed processes and increase reliability.At this watershed moment in legal history, corporate counsel must work better, faster andcheaper. This white paper will identify proven methods for team-oriented lawyers to enhanceproject management, streamline logistics, and incorporate technologies like electronicredaction, which have a measurable and immediate return on investment. 1©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 3. e-Discovery with Leaner Legal Teams IGC White PaperI. The Power of Project ManagementWith increased responsibilities falling on each remaining in-house employee, efficiency is akey goal of corporate legal departments. Their teams are controlling costs by tighteningnegotiation acquisition cycles, streamlining e-discovery and maximizing individual teammember contributions. To achieve these better, smarter, faster objectives, “Projectmanagement takes on heightened importance,” says Allison L. Brecher, Senior LitigationCounsel and Director of Information Management & Strategy for Marsh & McLennanCompanies.“A shift has occurred in the past few years where in-house counsel are no longer just legaladvisors to their businesses: they become partners with them by offering advice on plannedservice offerings and acquisitions. They now take a proactive role in anticipating complianceor legal issues that arise from these transactions,” notes Brecher. By getting more activelyinvolved in processes, counsel can help keep timelines in check and budgets from runningamok.The most significant return on this effort is in the execution of e-discovery. Savvy corporatecounsel know that delegation of document preservation to their technologists is no longer anacceptable practice at the onset of litigation. “While certain tasks still can, and should be,assigned to other corporate functions, the legal department should consider how it can beinvolved in the process by making sure relevant employees receive, understand and complywith legal hold notices and that IT and other business functions are involved in, and cancoordinate the process of, document preservation,” adds Brecher, who is the co-author withShawnna Childress of E-Discovery Plain and Simple. To do this, someone on the in-houselegal team must be intimately familiar with the company’s records management rules,preservation mechanism, and possibly the key data holders around the company.Those records must also be protected and their information safeguarded using the mostsophisticated redaction and privacy enhancing tools available in the marketplace. Flawedredaction can result in privacy violations and data misgivings. Fortunately, these can often beovercome with software that allows producers to shield sensitive information. 2©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 4. e-Discovery with Leaner Legal Teams IGC White PaperAlso, although court deadlines guide the process, in-house project managers no longer havethe luxury of allowing an external arbiter to dictate internal operations. Accelerated timeframes,increased supervision and budgetary pressures have completely changed the operationalparadigm. Those who fail to adapt are likely to experience macro-level deficiencies. “Goodproject management isnt a skill taught in law school, but instead it’s careful planning, withattention paid at the start of the case to an overall litigation strategy,” observes Brecher.“Making early case assessments can help counsel decide on the most effective way to presentthe claims or defenses in the litigation.” A. Internal Review Is Essential for External ImpactOnce an organization designates a strong project supervisor, its teams can control more of thereview process internally. That control permits greater data reduction, which optimizes cost-cutting. Once the team finalizes the data set and fully outlines the scope of the project it candetermine which tasks to outsource by size and complexity, reserving more complicatedmatters for internal staff.Those who execute in this fashion achieve commensurate results. Vincent Miraglia, SeniorCounsel for Information Technology at International Paper, explains how his team successfullymaintains control during discovery. “If opposing counsel will not agree to limit discoveryappropriately, we will attempt to use a phased approach to discovery,” he notes. A phasedapproach reveals the universe of documents under consideration to an adversary, but allowsthe organization to better control the pace at which production is necessary. It also permitswider latitude in later phases of discovery.When outsourcing tasks, seamless communication with temporary attorneys is critical to thesuccess of the project. “Whether discovery is being managed in-house or outside, it is vital toprovide clear and concise direction to those who are reviewing documents,” adds Miraglia.Attentive management of this type yields fewer mistakes, reduced confusion and, of course,lower costs. 3©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 5. e-Discovery with Leaner Legal Teams IGC White Paper B. Manage Expectations with Regulated Reporting or Risk DiscontentWhether it is weekly meetings, daily email reports, or more ad hoc methods, supervisors willonly succeed if they communicate expectations and quickly respond to subordinate inquiries.“Proactive supervision and clear communication to the entire group will reduce the number ofrecurrent issues going forward,” highlights Miraglia.The recent settlement of the patent and antitrust matters in which Qualcomm will payBroadcom $891 million over four years has been attributed to the ability of the new chief legalofficers at each company to speak with one another, and to encourage their outside counsel todo the same. iii Collaborative communication is the hallmark of successful legal teams. C. Encourage Reasonableness or Endure the UnreasonableGone are the days where each side tries to hide everything possible from the other. The morecooperative the teams, the smoother the process will be. Agree on areas of privilege andrelevance, and then redact what is necessary to conceal. The agreement and redaction stepsare often undervalued and occasionally overlooked. Attentiveness to this point, however, canmean the difference between cooperation and combat. The sooner the parties agree onrelevance and scope, the more time they will have to ensure the critical information is properlyprotected.The most talented directors encourage reasonableness both to their internal staff, as well asexternally to their adversaries. They do so by highlighting to their organization that minimalcontrols in creating, storing and destroying documents will have a tremendous impact onelectronic discovery in future matters. In the infamous Zubulake v. UBS Warburg, JudgeScheindlin held that the failure by UBS to properly communicate document obligations with itsemployees resulted in the noncompliance that warranted severe sanctions. iv That failure orinability to relay important obligations continues to have repercussions in a broad range ofmatters. vSelf-directed discipline, particularly as it relates to corporate data destruction policies, willreduce cost and increase an organization’s ability to locate data and respond cost-effectivelyto a request for information. vi It will also encourage greater internal compliance and generate 4©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 6. e-Discovery with Leaner Legal Teams IGC White Papergoodwill with adversaries who will perceive an atmosphere of good faith and professionalism.This relationship will often translate into agreements relating to discovery deadlines andflexibility in the evaluation of legacy data, among other allowances. D. Create Lean, Effective Teams to Ward Off Proposed LayoffsProper staffing is an essential component of seamless discovery operations. In the currentmarket, there is a need to continuously justify the size of the legal team to combat potentiallayoffs. In buoyant economic times, non-essential staff members may be reallocated duringslower periods; however, in a protracted recession, those individuals are often terminated.Their duties are reassigned and the pressure to increase efficiency only grows.To avoid this cycle, maintain lean support clusters, and routinely identify the contributions ofeach member. For teams that have already clearly defined a project manager, examineprocesses as recommended to identify which tasks should remain in-house and what can beoutsourced. Ensure team members have a solid understanding of their company’s documentretention and destruction policies (and how to effectively put them on hold). If the projectmanager has a strong handle on team member contributions, it will be much easier to justifythe role and importance of each member.If you have support staff members that are not currently involved in a task, consider focusingtheir efforts on risk-aversion and liability issues, including compliance concerns, to help savemoney in the future. Create a team focused strictly on process improvement, with a particulareye on how to better interface with other groups around the company, such as finance andaccounting, IT, product managers, and data holders. This not only increases team membervisibility within the organization, it offers a collective best practice in an environment wherehighlighting staff output is essential for job security.II. LogisticsOnce legal teams are established, leaders of those groups must define routines in which theycan operate and thrive. From conference room reservations to document workflow, effectiveearly case assessment, review and processing are more complex in periods of austerity. Theyare also becoming part of the fabric of basic discovery in modern disputes. 5©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 7. e-Discovery with Leaner Legal Teams IGC White Paper A. Use Internal ResourcesThe trend that started with in-house legal departments using their own facilities and equipmentfor document reviews has evolved into an assumption by the client of the overall discoverymodel. Of course, the level of control depends on the case. Organizations have learned thatby streamlining procedures in a familiar setting, the cost of supervision decreases while theeffectiveness of that supervision increases, highlights Miraglia. “On some cases, we haveused the same temporary reviewers,” he says, speeding cycles by working with outsourcedstaff that is already familiar with their methodology, team and overall approach.His team maintains continuity and cohesion by centralizing operations in its corporate officesfor a few weeks so that they can develop a unified work style, comfortably discuss key issues,and report questions or concerns instantly. Efficiency grows with time and as the processadvances, an organization may feel confident enough in the work product to allow contractorsto work remotely, which further reduces the cost. This comfort level grows when it establishesproper protocols to protect sensitive data using advanced redaction capabilities. B. Demand Clear BillingGiven the reduced demand and increased supply from outside counsel, in-house teams havemore power to demand accountability for the legal services they receive. In a down market,outsourced law firms prefer to control the low-value yet high-margin processes, but thepreference is shifting. “I think there is a sea of change coming in which firms that can get infront of the wave and figure out ways to add their secret sauce without needing a largeleverage ratio of lower value tasks to make their numbers … [those firms] are going to win,”predicts Jay Brudz, Senior Counsel for Legal Technology at General Electric.Corporate counsel can dramatically improve their cost management by demanding clear billsand direct pricing for specified services from outside firms and vendors. As the legalcommunity fully migrates to an electronic billing atmosphere with automated accounts payableintegration, in-house lawyers play the role of “receiver,” says Brudz. “We have controllershipresponsibilities for determining if what we are paying for was actually delivered,” he adds.“You need a clear invoice to be able to tell if you got what you are being billed for.” 6©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 8. e-Discovery with Leaner Legal Teams IGC White PaperBrudz highlights that an invoice is a significant means of communication between clients andtheir attorneys. “Outside lawyers should spend just as much time creating that invoice andmaking sure it tells the right story as they do in any opinion memo they send me,” herecommends. Detailed billing often encourages the sender to evaluate the work performedand independently determine its worth to the client.III. TechnologyLegal teams are well aware that there are varying numbers quantifying the electronic datadiscovery (EDD) market for software and services. The Sixth Annual Socha-GelbmannElectronic Discovery Survey placed the amount at approximately $3.3 billion in 2008 vii to over$4.8 billion by 2011. viii Many also calculate the total for attorney review at multiples of thatamount, raising the associated EDD cost by tens of billions of dollars. Some of those billionsare wasted, since 90% of documents turn out to be irrelevant. ix The opportunity cost ofinefficiency is staggering, so finding the right combination of technology to review, analyze,and protect documents and data is critical.The key to harnessing positive results is to fight the fear of spending with metrics thatdetermine the return on investment (ROI). Forward-thinking organizations are driving ROIthrough the use of technologies that offer immediate and impactful results. Technologypurchases such as case management software and review platforms are among the mostcommon but their impact can be difficult to quantify; however, there are tools that demonstratetheir value almost immediately.In the new model of corporate counsel oversight on spending, the ROI for technology needs tobe very fast, says Alexandra G. Buck, Director and Senior Counsel E-Discovery & RecordsManagement for Abbott Laboratories. Just how fast does the ROI need to be realized?According to Buck, “Six months tops,” which means the project managers have little room forramp-up and execution. 7©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 9. e-Discovery with Leaner Legal Teams IGC White Paper A. Maximize CullingThe culling process begins with a refined workflow which allows support teams to assign andcollaborate on a series of tasks, then track their status through completion. x This becomesvery important on large review projects with widely distributed review personnel.The tools include analytics software that can produce reports and other visuals that enablereviewers to identify relationships between documents. They increase the speed andaccuracy of review. Also helpful are features that calculate the frequency of certain terms andwords in a data set. This is important for reviewing email threads, identifying connectionsbetween the recipients and studying timelines. xi That frequency can reveal new areas ofsubstantive focus for a particular case or help to validate an existing position.Ultimately, these tools filter out irrelevant information. This filtering process reduces theoverall haystack to a more manageable number of files. It also allows legal analysts to accesskey documents much earlier in the action. The impact is both to lower costs and to increasethe likelihood of a beneficial result. xii B. Electronic RedactionProject supervisors will fail unless they recognize that technology tools, such as redactionsoftware, protect valuable information and almost immediately demonstrate their ROI value.The traditional method of redacting by using black markers and photocopiers is timeconsuming, labor intensive and prone to error. In direct contrast to traditional redactionmethods, there are affordable electronic alternatives that enhance the efficiency of the entireprocess. Redaction software offering intelligent pattern matching (for things like SocialSecurity or account numbers), text search and verification and review features can decreasethe risk of accidental disclosure and eliminate days or even weeks from the total discoverycycle.Corporate counsel should be aware that a 2008 study revealed that 74% of U.S. law firmssurveyed still perform redaction manually while only 44 percent employ technology to protectprivileged information. xiii Organizations that incorporate and master the use of electronic toolshave a distinct advantage, and are likely to receive favorable pricing from their outside counsel. 8©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 10. e-Discovery with Leaner Legal Teams IGC White PaperIt is the responsibility of the project manager to understand these advantages and negotiatewith outside counsel for proper credit to the company. C. Manage Your Data ProperlyGiven the speed at which decisions are being made and the criteria on which they are judged,long-term document management is critical. Organizations are increasingly focused onincorporating best practices much earlier in the process. The economy has also forcedindividuals responsible for different aspects of litigation to maintain ownership of their taskthroughout the life of the matter.How a firm applies document management technologies depends on the culture of theorganization and its litigation readiness quotient; however, neither eliminates the need for suchapplication. Those that prepare for an occasional lawsuit are likely to consider issues that aredifferent from a company involved in serial litigation. And while each has a unique identity,there is a universal shift in the dynamic of internal legal departments. They are recalibratingtheir efforts to accomplish more with less by streamlining their operations and buildingefficiencies. Modified project management and new technology are creating opportunity in theeconomic crisis. And, individuals who embrace this new era will thrive and more effectivelymanage their overall responsibilities. D. The Paradigm ShiftThe legal community is at a watershed moment in its history. The chaos in the globaleconomy has forced corporations to reevaluate their litigation expenses and prompted a shiftin the way that lawyers provide legal services. That shift is both practical and cultural. Thereis a renewed emphasis on fundamental technology to protect and manage data that impacts amatter from the outset to its conclusion. There is also a strong focus on the efficiency ofcross-disciplinary collaboration. In-house counsel who embrace this new model will be able tosneeze freely without spending unnecessary money, and they will streamline their operationsand chances for success in the process. 9©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061
  • 11. e-Discovery with Leaner Legal Teams IGC White PaperAbout the AuthorGary Heath is CEO of Informative Graphics, a leading developer ofcommercial software products for content visualization, securepublishing and collaboration. Founded in 1990, InformativeGraphics products are deployed by thousands of corporationsworldwide.i Barbara Rose, In-house Is No Haven, ABA Journal (June 2009).ii http://www.acc.com/advocacy/valuechallenge/index.cfm.iii Zusha Elinson, Chip Makers $891 Million Settlement Infused by New Blood, The Recorder (April 30,2009).iv Zubulake v. UBS Warburg LLC, 229 FRD 422 (S.D.N.Y. 2004).v John J. Coughlin, Lessons Learned From Observing E-Discovery Errors, The National Law Journal(September 22, 2008).vi See, Greg Saikin and Sarah Tubbs, Grand Jury Subpoenas Require Careful Response, Texas Lawyer(October 07, 2008).vii George Socha & Tom Gelbmann, A Look at the 2008 Socha-Gelbmann Survey, Law TechnologyNews (August 11, 2008).viii Barry Murphy, Believe It — e-Discovery Technology Spending To Top $4.8 Billion By 2011,Forrester Research (December 11, 2006).ix Brett Burney, Subdue the Costs of Document Review, Law.com (June 23, 2008).x Michael C. Lynch, Guy Wiggins and Conor S. Harris, Cutting-Edge Tools to Help Streamline EDD,New York Law Journal (November 4, 2008).xi Id.xii See, Martin Mayne, Keys to Planning Effective Document Review, Texas Lawyer (April 9, 2009).xiii http://www.infograph.com/press/LawFirmSurvey.htm 10©Informative Graphics Corp. 4835 E. Cactus Rd., Suite 445, Scottsdale, AZ 85254 Tel: +1 602.971.6061