Guidelines & Metrics for Efficient & Dynamic Inside-Outside Counsel Partnerships
1. Guidelines & Metrics for Efficient and
Dynamic Inside-Outside Counsel
Partnerships
Virtual Corporate Counsel
April 19th, 2012
www.llminc.com
2. The Faculty
Dawson Horn III Eric S. Knustrom, Esq.
Senior Litigation Counsel Account Executive
Tyco International Liquid Litigation Management, Inc.
www.llminc.com
3. The Complexities of e-Discovery
“With the rapid and sweeping advent of electronic
discovery, the litigation landscape has been radically
altered in terms of scope, mechanism, cost, and
perplexity. This landscape may be littered with more
casualties than successes . . . .”
-- PSEG Power N.Y., Inc. v. Alberici Constructors, Inc.
www.llminc.com
4. Consequences of Poor Litigation
Management
– Derailed trial strategy
– Team tension leading to sub-par performance
– Missed deadlines
– Sanctions
• Philips Electronics Corp. v. BC Technical, 2011
• Fed. R. Civ. Proc. 37(b)
– Skyrocketing costs
• Zarwasch-Weiss v. SKF Economos USA, Inc., 2011
– Injury to reputation
• Green v. Blitz 2011
www.llminc.com
6. Why P.I.M.A.?
– Integrate inside and outside counsel more effectively.
– Reduce the cost of e-Discovery and litigation.
– Streamline workflows to reduce errors.
– Prevent past mistakes from becoming future headaches.
– To support the merits of the case and ultimately WIN.
www.llminc.com
7. Plan: Before the Complaint
– Know your IT team
– Explain expectations (e.g. litigation hold)
– Understand your IT infrastructure
www.llminc.com
8. Plan: After the Complaint
– Understand the dispute
– Know your timetable – the Rules
• Fed.R.Civ.P. 26 and 16(b)
• SDNY Pilot Project Rules for Complex Litigation
– Who do I need to involve?
• Who owns the facts?
• Magana v Hyundai Motor Am., 2009
• Whose business am I about to disrupt?
• Litigation Hold
– “Preliminary” Early Case Assessment: How big/serious/far
reaching is this?
– Budget development
www.llminc.com
9. Plan: After the Complaint
– Assemble a winning team
• Outside Counsel
• Vendors
• Others
– Establish workflows and processes
• Gentex v. Sutter 2009
• J-M v. McDermott
www.llminc.com
10. Implement
– Maintain a “big-picture” overview
– Coordinate, monitor and coach
– Reporting systems that are deadline driven
– Let your team do its work
• But remember, ignorance is not bliss
• Qualcomm Inc. v. Broadcom Corporation
• Gener v. TR Investors
www.llminc.com
11. Measure
– Make expectations clear
– Share measurements
– Develop proactive measurement tools
• J-M v. McDermott
– Keep measurements flexible
• In Re: Nat’l Assoc. of Music Merchants
www.llminc.com
12. Adjust
– Remember, most cases evolve over time
– Allow for a dynamic infrastructure
– Analyze: is an issue the result of:
• Team member
• Plan that needs adjustments
– Anticipate staff rollover with robust documentation of
workflow and expectations
– Retain past plans in case they gain relevancy
– Constantly adjust throughout the lifecycle
• Delta/Airtran Baggage Fee Antitrust Litig.
www.llminc.com
13. Conclusion
– PIMA is dynamic and ongoing
• Goal is continuous improvement
• Future cases benefit from past cases
– PIMA is a disciplined tool and process, adhere to these
principles and consider advanced technology as your friend
– PIMA is linked to the ebb and flow of a case
www.llminc.com
14. Accompanying material available at blog.LiquidLitigation.com
Bibliography
Case Law
Green v. Blitz 2011 WL 806011 (E.D. Tex. Mar. 1, 2011)
Gentex v. Sutter 2009 U.S. Dist. LEXIS 106304 (M.D. Pa. Nov. 13, 2009)
In re National Association of Music Merchants, Musical Instruments, and Equipment Antitrust Litigation,
2011 U.S. Dist. LEXIS 145804 (S.D. Cal. Dec. 19, 2011)
In re Delta/Airtran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2012 U.S. Dist. LEXIS 13462
(N.D. Ga. Feb. 3, 2012)
Cannata v. Wyndham Worldwide Corp., No. 2:10-cv-00068-PMP–VCF, 2012 U.S. Dist. LEXIS 20625 (D.
Nev. Feb. 17, 2012)
Osborne v. C.H. Robinson Co., 2011 U.S. Dist. LEXIS 123168 (N.D. Ill. Oct. 25, 2011).
Zarwasch-Weiss v. SKF Economos USA, Inc., 2011 U.S. Dist. LEXIS 113707 (N.D. Ohio Oct. 3, 2011).
Philips Electronics N. Amer. Corp. v. BC Technical, No. 2:08-CV-639-CW-SA, 2011 WL 677462 (D. Utah
Feb. 16, 2011)
Genger v. TR Investors, LLC, 2011 WL 2802832 (Del. Supr. July 18, 2011)
J-M Manufacturing Company, Inc. v. McDermott Will & Emery (No. BC462832, Calif. Super., Los Angeles
Co.)
PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7,
2007)
Magana v. Hyundai Motor Am., 2009 WL 4070952 (Wash. Nov. 25, 2009)
Qualcomm Inc. v. Broadcom Corp., "Qualcomm IV", 2010 U.S. Dist. LEXIS 33889 (S.D. Cal. Apr. 2,
2010).
Statutes & Rules
Fed. R. Civ. Proc. 26 & 16(b)
Fed. R. Civ. Proc. 37(b)
www.llminc.com
Editor's Notes
Dawson Horn, III Mr. Horn is presently Senior Litigation Counsel with Tyco in Princeton NJ where, among other things, he manages a large toxic tort docket and insurance recovery docket. Prior to that he served for eight years as Assistant General Counsel at Altria Corporate Services in New York, New York where his primary responsibilities had been in the areas of product liability and civil RICO litigation. He managed Altria’s defense in the multi billion dollar RICO law suit by the Department of Justice against the major U.S. cigarette companies. He was also involved in government affairs activities. In both positions he has had discovery and particularly ediscovery responsibilities. While his most recent challenges have been in the area of litigation, which is consistent with his early background as a litigator with Pepper Hamilton & Scheetz law firm, he also has a transactional background having been procurement counsel at Scott Paper Company and Campbell Soup Company, as well as having lead corporate transactions for UnitedAuto Group and Dannon Companies. Mr. Horn received his A.B. degree from Duke University (with honors) in 1978 and his J.D. from Duke University School of Law in 1983. Eric S. Knustrom, Esq. Eric S. Knustrom, Esq. is an Account Executive at LLM, Inc. where he helps identify opportunities to streamline workflow and maximize efficiency in the litigation process. Mr. Knustrom’s experience comes from working as an attorney in law firm, in-house, and contract roles as well as with service providers. Mr. Knustrom is licensed to practice law by the State of Texas and received his J.D. from the University of Texas School of Law in 2001. Prior to joining LLM, Inc. Mr. Knustrom worked with law schools for both the Bureau of National Affairs and LexisNexis assisting schools with collection development, legal research and writing instruction, and implementation of legal technology within the legal education community. Mr. Knustrom has presented at several legal conferences including the 2004 ABA National Conference and multiple American Association of Law Librarian, American Association of Law School, and National Conference of Law Reviews National Conferences. He excels at identifying those situations where technology can add value to the legal profession benefitting practitioners, clients, and the legal process.
A mishap with discovery can sink an entire case. a) Failure to preserve b) Incomplete production d) Miscommunication w/in your team f) Missed deadlines g) Inadvertent production of a privileged document Discovery has only grown in size and complexity, and the same is true of the discovery process (see quote from 2009). Where are we now, in 2012? While technology has improved, our management of the e-discovery process has not. The burden of discovery ultimately falls upon the party responsible for producing ESI; you need a strategy in place. a) Thus, equipping both your in-house and outside counsel with all the tools they need to properly execute your litigation strategy is crucial. b) Managing the process once your team and tools are in place is just as important.
Information important to the trial strategy could be delayed. Tension could be created within the team, resulting in subpar performance. Important deadlines missed. E.g. Music Merchant case Incomplete productions could lead to discovery sanctions, including adverse inference instructions. A delayed or derailed discovery process can result in skyrocketing costs. See the case of Green v. Blitz, where an e-discovery “oops” turned into a quarter of a million dollars in sanctions. Also, Zarwasch-Weiss v. SKF Economos USA, Inc., 2011 , where destruction of evidence led to triple the amount of damages that could be proved.
What is PIMA? a four-point process that – if followed proactively – corporations will find helps their litigation efforts gain efficiency and effectiveness. Plan Implement Measure Adjust
The discipline is important for driving more successful outcomes because: * perhaps cite an example of co-relationships between inside and outside counsel where this has been used successfully. * Have GC speak to why integration is important and a time when it really saved the litigation
If you fail to plan, plan to fail. This colloquialism, while overused, is nonetheless accurate. No one enters into litigation with any other goal than to secure the most favorable outcome possible for their client. The way to achieve that goal is to build not only a successful team, but a reliable process. Assess needs and set expectations a) The first step is to define the roles that need to be filled before beginning to assemble your team. Knowing what players the strategy calls for can help you balance the team so everyone is playing the right part at the right moment. For example: inside counsel is a patent expert, but the litigation concerns property rights. *Ask GC to speak to importance of being honest about strengths and weaknesses rather than just acting like you know it all. b) Make sure to return to these needs and expectations when picking your team and establishing workflow so that you can be sure they will fulfill your needs. c) Integrated technology is not only a convenience but really more of a essential tool required to compete in today’s litigation space. Tools such as case management software provided in a hosted or cloud environment, not only drives significant efficiency but assures the seamless flow of information to all relevant parties. Access at anytime from anywhere across team members can not only save time but drive better outcomes. Hosting also prevents downtime should an internal service have issues or require maintenance The ability to integrate and transfer information from one phase to the next across the case management continuum is also important. This assures that information is complete, accurate and presented in the same way as you shift from one phase to the next. You also minimize the risk of lost information and inaccurate conversion Flow of Information a) Security is everything in our business. Regulating the flow of information is critical to providing the protection of your IP and asset information that the case requires b) Establish the appropriate clearance levels across the team, both inside and outside counsel c) Ensure your technology is scalable for the security requirements you have d) Create separate log-ins for all users to ensure an audit trail of actions being taken Assemble a winning team a) Understand the difference between your in-house expertise and your service provider’s expertise so you can take full advantage of both. b) Simply hiring the “leaders in their field” does not guarantee success. Your team needs to be comprehensive, covering all the key skills sets required to successfully move a case from discovery through trial/judgment. c) You must communicate your goals and expectations so team members know the role they are expected to play and everyone works together to achieve the larger goal. If all team members aren’t aligned, then you could have a situation where people take off on their own rather than following the plan. (“too many cooks spoil the soup”) d) Critical to have your team, including both internal and external counsel, aligned to the vision of the case. What is the outcome we have in mind (avoid trial, win judgment, etc.). Having clear goals and objectives helps guide the direction and decision making across the case management If you have different goals than your outside counsel, determine whether this can be fixed (not the right term) or whether you need to consider a different partner for this case e) Let all team members fulfill their roles according to their expertise, and defer to the experts you hire. If you’ve clearly defined your need (as well as your boundaries) they will best know how to fulfill it. You need to have a team you trust and that you can depend on – this is paramount. Otherwise there will be countless hours double-checking the progress and the work. *Ask GC to talk about different ways of organizing or managing these relationships; the hierarchy? f) Do your homework. While past relationships are key and reputations can provide valuable insight, make sure the people you retain possess the skill set and experience that the immediate matter requires. Vet potential team members thoroughly so you aren’t in for an unpleasant surprise down the road. Establish workflows and processes a) Personnel should not be your only consideration; strategy, process and technology can play as big a part as the people you retain. The right players need a detailed game plan and the best tools/equipment in order to succeed. b) Make sure to develop your workflow before implementation, you don’t want to rely on one developing organically. You may overlook a key step that will set everyone back on the team. This setback will only build and you will end up missing deadlines. For example, in the antitrust case brought against Delta and another airline, Delta failed to produce all responsive ESI located on hard drives and backup disks, and was then sanctioned even though they claimed that the error was inadvertent. c) Don’t assume that outside counsel knows what you want from them and how you want it to be done. Articulate your expectations as clearly and concisely as possible from day one. When you communicate well and pick team members with integrity, trust will follow. d) Left to their own devices some team members might inadvertently exceed the scope of their role leading to overlap, duplication, and friction between team members. So if you hire an expert in one capacity, make sure he/she stays in that realm only. In the case of Gentex v. Sutter , the e-discovery expert also served as a testifying expert, leading to… d) Every organization is different; the method in which one firm deploys solutions and develops work flows is necessarily unique from every other. Work flow and processes can be different within sections of the same firm, so make sure your protocols are clearly defined. e) Fluid communication across counsel and service providers is key in this electronic area. Recommend having communications protocol to minimize ensure essential information gets to the right person at the right time. Think about: *Have GC give example of a system that worked for him. Who is the point person in each group? This can and should naturally shift as the case progresses What level of detail and levels within function needed to be communicated to and for what? When should you have conference calls among key stakeholders on important matters? For example, a best practice is to schedule a call with inside and outside counsel, as well as your with provider, before Rule 26(f). This “Meet and Confer” call allows you to confirm goals, discuss how to be more efficient/cut costs and have the provider share an understanding as to the technicalities of the case Establish protocols for strategic workflows such as review and production procedures. If all team members are clear on how to interpret and tag documents, for example, you will avoid mishaps that might lead to further legal action (cite McDermott Will & Emery example)
If you fail to plan, plan to fail. This colloquialism, while overused, is nonetheless accurate. No one enters into litigation with any other goal than to secure the most favorable outcome possible for their client. The way to achieve that goal is to build not only a successful team, but a reliable process. Assess needs and set expectations a) The first step is to define the roles that need to be filled before beginning to assemble your team. Knowing what players the strategy calls for can help you balance the team so everyone is playing the right part at the right moment. For example: inside counsel is a patent expert, but the litigation concerns property rights. *Ask GC to speak to importance of being honest about strengths and weaknesses rather than just acting like you know it all. b) Make sure to return to these needs and expectations when picking your team and establishing workflow so that you can be sure they will fulfill your needs. c) Integrated technology is not only a convenience but really more of a essential tool required to compete in today’s litigation space. Tools such as case management software provided in a hosted or cloud environment, not only drives significant efficiency but assures the seamless flow of information to all relevant parties. Access at anytime from anywhere across team members can not only save time but drive better outcomes. Hosting also prevents downtime should an internal service have issues or require maintenance The ability to integrate and transfer information from one phase to the next across the case management continuum is also important. This assures that information is complete, accurate and presented in the same way as you shift from one phase to the next. You also minimize the risk of lost information and inaccurate conversion Flow of Information a) Security is everything in our business. Regulating the flow of information is critical to providing the protection of your IP and asset information that the case requires b) Establish the appropriate clearance levels across the team, both inside and outside counsel c) Ensure your technology is scalable for the security requirements you have d) Create separate log-ins for all users to ensure an audit trail of actions being taken Assemble a winning team a) Understand the difference between your in-house expertise and your service provider’s expertise so you can take full advantage of both. b) Simply hiring the “leaders in their field” does not guarantee success. Your team needs to be comprehensive, covering all the key skills sets required to successfully move a case from discovery through trial/judgment. c) You must communicate your goals and expectations so team members know the role they are expected to play and everyone works together to achieve the larger goal. If all team members aren’t aligned, then you could have a situation where people take off on their own rather than following the plan. (“too many cooks spoil the soup”) d) Critical to have your team, including both internal and external counsel, aligned to the vision of the case. What is the outcome we have in mind (avoid trial, win judgment, etc.). Having clear goals and objectives helps guide the direction and decision making across the case management If you have different goals than your outside counsel, determine whether this can be fixed (not the right term) or whether you need to consider a different partner for this case e) Let all team members fulfill their roles according to their expertise, and defer to the experts you hire. If you’ve clearly defined your need (as well as your boundaries) they will best know how to fulfill it. You need to have a team you trust and that you can depend on – this is paramount. Otherwise there will be countless hours double-checking the progress and the work. *Ask GC to talk about different ways of organizing or managing these relationships; the hierarchy? f) Do your homework. While past relationships are key and reputations can provide valuable insight, make sure the people you retain possess the skill set and experience that the immediate matter requires. Vet potential team members thoroughly so you aren’t in for an unpleasant surprise down the road. Establish workflows and processes a) Personnel should not be your only consideration; strategy, process and technology can play as big a part as the people you retain. The right players need a detailed game plan and the best tools/equipment in order to succeed. b) Make sure to develop your workflow before implementation, you don’t want to rely on one developing organically. You may overlook a key step that will set everyone back on the team. This setback will only build and you will end up missing deadlines. For example, in the antitrust case brought against Delta and another airline, Delta failed to produce all responsive ESI located on hard drives and backup disks, and was then sanctioned even though they claimed that the error was inadvertent. c) Don’t assume that outside counsel knows what you want from them and how you want it to be done. Articulate your expectations as clearly and concisely as possible from day one. When you communicate well and pick team members with integrity, trust will follow. d) Left to their own devices some team members might inadvertently exceed the scope of their role leading to overlap, duplication, and friction between team members. So if you hire an expert in one capacity, make sure he/she stays in that realm only. In the case of Gentex v. Sutter , the e-discovery expert also served as a testifying expert, leading to… d) Every organization is different; the method in which one firm deploys solutions and develops work flows is necessarily unique from every other. Work flow and processes can be different within sections of the same firm, so make sure your protocols are clearly defined. e) Fluid communication across counsel and service providers is key in this electronic area. Recommend having communications protocol to minimize ensure essential information gets to the right person at the right time. Think about: *Have GC give example of a system that worked for him. Who is the point person in each group? This can and should naturally shift as the case progresses What level of detail and levels within function needed to be communicated to and for what? When should you have conference calls among key stakeholders on important matters? For example, a best practice is to schedule a call with inside and outside counsel, as well as your with provider, before Rule 26(f). This “Meet and Confer” call allows you to confirm goals, discuss how to be more efficient/cut costs and have the provider share an understanding as to the technicalities of the case Establish protocols for strategic workflows such as review and production procedures. If all team members are clear on how to interpret and tag documents, for example, you will avoid mishaps that might lead to further legal action (cite McDermott Will & Emery example)
If you fail to plan, plan to fail. This colloquialism, while overused, is nonetheless accurate. No one enters into litigation with any other goal than to secure the most favorable outcome possible for their client. The way to achieve that goal is to build not only a successful team, but a reliable process. Assess needs and set expectations a) The first step is to define the roles that need to be filled before beginning to assemble your team. Knowing what players the strategy calls for can help you balance the team so everyone is playing the right part at the right moment. For example: inside counsel is a patent expert, but the litigation concerns property rights. *Ask GC to speak to importance of being honest about strengths and weaknesses rather than just acting like you know it all. b) Make sure to return to these needs and expectations when picking your team and establishing workflow so that you can be sure they will fulfill your needs. c) Integrated technology is not only a convenience but really more of a essential tool required to compete in today’s litigation space. Tools such as case management software provided in a hosted or cloud environment, not only drives significant efficiency but assures the seamless flow of information to all relevant parties. Access at anytime from anywhere across team members can not only save time but drive better outcomes. Hosting also prevents downtime should an internal service have issues or require maintenance The ability to integrate and transfer information from one phase to the next across the case management continuum is also important. This assures that information is complete, accurate and presented in the same way as you shift from one phase to the next. You also minimize the risk of lost information and inaccurate conversion Flow of Information a) Security is everything in our business. Regulating the flow of information is critical to providing the protection of your IP and asset information that the case requires b) Establish the appropriate clearance levels across the team, both inside and outside counsel c) Ensure your technology is scalable for the security requirements you have d) Create separate log-ins for all users to ensure an audit trail of actions being taken Assemble a winning team a) Understand the difference between your in-house expertise and your service provider’s expertise so you can take full advantage of both. b) Simply hiring the “leaders in their field” does not guarantee success. Your team needs to be comprehensive, covering all the key skills sets required to successfully move a case from discovery through trial/judgment. c) You must communicate your goals and expectations so team members know the role they are expected to play and everyone works together to achieve the larger goal. If all team members aren’t aligned, then you could have a situation where people take off on their own rather than following the plan. (“too many cooks spoil the soup”) d) Critical to have your team, including both internal and external counsel, aligned to the vision of the case. What is the outcome we have in mind (avoid trial, win judgment, etc.). Having clear goals and objectives helps guide the direction and decision making across the case management If you have different goals than your outside counsel, determine whether this can be fixed (not the right term) or whether you need to consider a different partner for this case e) Let all team members fulfill their roles according to their expertise, and defer to the experts you hire. If you’ve clearly defined your need (as well as your boundaries) they will best know how to fulfill it. You need to have a team you trust and that you can depend on – this is paramount. Otherwise there will be countless hours double-checking the progress and the work. *Ask GC to talk about different ways of organizing or managing these relationships; the hierarchy? f) Do your homework. While past relationships are key and reputations can provide valuable insight, make sure the people you retain possess the skill set and experience that the immediate matter requires. Vet potential team members thoroughly so you aren’t in for an unpleasant surprise down the road. Establish workflows and processes a) Personnel should not be your only consideration; strategy, process and technology can play as big a part as the people you retain. The right players need a detailed game plan and the best tools/equipment in order to succeed. b) Make sure to develop your workflow before implementation, you don’t want to rely on one developing organically. You may overlook a key step that will set everyone back on the team. This setback will only build and you will end up missing deadlines. For example, in the antitrust case brought against Delta and another airline, Delta failed to produce all responsive ESI located on hard drives and backup disks, and was then sanctioned even though they claimed that the error was inadvertent. c) Don’t assume that outside counsel knows what you want from them and how you want it to be done. Articulate your expectations as clearly and concisely as possible from day one. When you communicate well and pick team members with integrity, trust will follow. d) Left to their own devices some team members might inadvertently exceed the scope of their role leading to overlap, duplication, and friction between team members. So if you hire an expert in one capacity, make sure he/she stays in that realm only. In the case of Gentex v. Sutter , the e-discovery expert also served as a testifying expert, leading to… d) Every organization is different; the method in which one firm deploys solutions and develops work flows is necessarily unique from every other. Work flow and processes can be different within sections of the same firm, so make sure your protocols are clearly defined. e) Fluid communication across counsel and service providers is key in this electronic area. Recommend having communications protocol to minimize ensure essential information gets to the right person at the right time. Think about: *Have GC give example of a system that worked for him. Who is the point person in each group? This can and should naturally shift as the case progresses What level of detail and levels within function needed to be communicated to and for what? When should you have conference calls among key stakeholders on important matters? For example, a best practice is to schedule a call with inside and outside counsel, as well as your with provider, before Rule 26(f). This “Meet and Confer” call allows you to confirm goals, discuss how to be more efficient/cut costs and have the provider share an understanding as to the technicalities of the case Establish protocols for strategic workflows such as review and production procedures. If all team members are clear on how to interpret and tag documents, for example, you will avoid mishaps that might lead to further legal action (cite McDermott Will & Emery example)
Workflows on paper must be translated to actionable items Maintain a big-picture overview Make sure that there is at least one person who doesn’t get bogged down and blinded by the details that can keep everyone on schedule and on task. Create a calendar Not all processes in your litigation plan will launch or wind up at the same time. It’s important to have a schedule for technology much like the calendar the court keeps for the case. E.g. flow of information – database is set up, reviewers are trained, but custodians slow to send in data hold you up Appoint someone to focus exclusively on managing the calendar It may also be helpful to appoint someone who can focus exclusively on managing the calendar by scheduling appointments, confirming times, dates, and locations, and reminding people of upcoming engagements. For example, you can easily avoid missing a deadline because an email message wasn’t responded to in a timely manner if someone is actively handling all scheduling duties. Coordination; like a coach rehearsing plays the night before a big game, you should walk each party through their role and make sure they understand how they fit into the larger scheme. This also helps you double check and make sure that all members of the team have received the correct training and understand their respective jobs. Trust your team. You hired experts, so trust their judgment and be open to their suggestions, within reason. Allowing them to assist with the implementation of the litigation strategy can minimize “growing pains.” (of course, don’t forget to guard against cross contamination of roles within the litigation) Allow for dynamic case infrastructure *Ask GC to give an example of what this means so it isn’t so vague
Create concrete and reoccurring tools for assessing performance and defensibility Develop proactive measurement tools Making sure you have proactive processes for measurement in place will mean you don’t have to wait for problems to snowball, because you can identify and resolve them much sooner. How many times have you heard “When did that become a problem?” Be sensitive to arising issues. There are organic signs of problems. Oftentimes, people measure things without realizing it; for example, sending an email when there’s a problem or venting about frustrations to co-workers. Apply strategic thinking to pre-identify potential difficulties during litigation and be extra vigilant during these time periods. These are valuable chances to ask questions and go deeper into the matter to see whether or not it is something that will need to be addressed or fixed. Look for a system w/ built in metrics that will self-identify these issues. It can be as simple as having a discussion board where team members can post questions or report problems/delays or a variety of distribution lists for the different aspects of the litigation process. If reporting is not a feature built into your technology platform, have your service provider set up custom reports for you that you can run yourself. Create systems for quality control. Don’t wait to the end of the production to check the accuracy of coding. For example, a report on % change in tagging is important for a multi-tiered review in which you will need to check for quality after each level. How accurate were your reviewers during the first pass based on how many tags senior reviewers changed during second pass? Analyze the quality of an e-discovery process as a whole. If you don’t do it you can get in trouble with sanctions (Osborne v. Robinson, defendant did not use best practices outlined by FRCP and Sedona, was sanctioned). Make your process defensible and well documented so that you can prove that you did what you said you were going to do. Keep measurements flexible If you plan properly you can more easily reassess as your case grows or shrinks. Technology solutions with built in metrics can allow you to scale each phase of the process and minimize cost exposure. Are you adding more custodians? Is your data set growing? *Ask GC to talk about metrics that he has used in the past; why he chose them, what they measured, how they worked, were they effective? Make initial plan based on predicted size and scope of the case, but don’t assume that everything is going well, keep probing and asking for measurable responses. This will help further down the road when you need to train new team members. E.g. have someone keep a daily log, consider maintaining an FAQ or memo that addresses the challenges the team has faced as reference. While there are highly visible portions of the litigation process, the most important hearing can be derailed by the inability to identify problems with the EDRM. Anticipate ways for team members to communicate problems from the most catastrophic to the mundane, and use past experience as a valuable starting point. It will help you to identify the types of problems that may arise. Are you over-collecting? Are you collecting too few documents? Make expectations clear: how often do you expect reports? From whom? About what? Share measurements Communication must cross traditional communication borders; partner to paralegal, service provider to inside counsel; custodians to service provider. A challenge at one level could be completely unknown to other members of the team. This will get your team working together and give you and other key partners insight into how the case is progressing as a whole. *Ask GC to talk about how to mesh the different metrics and systems that outside/inside/vendor are using and how to harmonize them. Not everyone needs to be included on every communication but everyone needs to be informed. Creating “communication hubs” within each organization means that each team has an individual they can contact to share concerns or to get information regarding other aspects of the litigation plan. However, don’t assume that any team members “don’t need to know” about an issue. Unless it’s a matter of privilege or strategy, operational challenges can have ripple effects that aren’t felt until later in the process when it is too late to easily address them. Assigning accountability can be a challenge, by making measurements proactive and sharing them widely it makes shifting blame more difficult and weak points in the plan or in the team easier to identify.
make proactive decisions based upon your measurements and change your plan accordingly There is a difference between being proactive vs. having a plan in place to adjust your preservation, filtering, search terms. Get #s on your data set early on so you can add staff or storage. Will you being adding custodians that have a different makeup of data? Is a glitch in the case the fault of a team member that needs to be retrained or is inadequate, or is it a flaw in you plan? Here’s a tip: At the beginning of review, look over a set of 100 tagged documents per reviewer to check. Then you can decide if you and your review team are on track or if the system needs to change. Team member: For example, Are you reviewers tagging consistently? IF not, what can you train them on for more accurate or consistent review? Needs more training: make sure you updated documentation and retrain ongoing team members as well as new team members. Make training and technology changes as you go and make sure that they get communicated and implemented. Inadequate: Do you need to re-staff? Allow for a dynamic case infrastructure: Just because a setup made sense at the beginning of a case doesn’t mean you shouldn’t alter things as trial approaches, e.g. calls once a month may need to increase to once a week closer to trial. Be open to modification of your original protocols rather than force fitting your current situation into an outmoded formula. Anticipate staff rollover people can come and go during the lifecycle of a case, from document review attorneys to senior counsel. *Ask GC for an example of where this (or something similar happened) and how it was dealt with effectively Be prepared to educate, train and equip new team members at any point in the case and have robust documentation for this occurrence. Have a strategy to shift/share responsibility if need be. The best team lead at the beginning of a case may shift as the matter progresses Retain information on suggested protocols that were not implemented. If factors change the very reason you rejected them might be a reason to shift to them. e.g. if data volume balloons a storage solution that seemed like overkill during planning might be the best option. Discuss data “holds” These measurements and adjustments are great at the beginning but do not forget to do these measurements and adjustments throughout the entire lifecycle of the matter. If you measure and adjust in an iterative manner, you can eliminate sources of error and waste in your litigation process, and stand to realize significant gains in efficiency and productivity.
COMMUNICATE, COMMUNICATE, COMMUNICATE. And be organized about it. MEASURE. Pay attention to the results of these measurements. PICK THE RIGHT PEOPLE. Build a balanced team you can trust. *Ask GC what his main takeaways from working with outside counsel are and how these fit into the PIMA model.
