By Tim Rollins
Author’s Note: In this series, we’re interviewing e-discovery professionals to understand what a typical day (if such a thing exists) looks like for them. The days portrayed in these articles are a composite of the tasks performed, conversations held, and meetings attended, and give others a sense of the way more experienced e-discovery practitioners structure their professional life. Today we’re looking at a day in the life of Linda Luperchio, CEDS, Director of E-Discovery and Information Governance at the Hanover Group.
Our practice is a little busier than most, because we do everything in house. To help stay on top of everything, we have a huge calendar that has all of the case/investigation deadlines for the month on one wall. Now, it changes every minute. As phone calls come in and as cases come in, we go over and update your calendar. It is right in front of me, across from my aisle, but directly in front of me. When I'm starting my day, I look at the 3rd and I say, "Okay, so I'm on the third. These are the things that are our deadline. On the 4th that's coming up right behind it, here are the deadlines."
E-Discovery is never standard. There is no standard day. Depending on what that phone call brings in, there may be a standard task, but there's not anywhere near as many standard tasks as there are surprises. I happen to love that. If you want your day to be completely predictable, don't go into eDiscovery. If you like to think on your feet and enjoy being ready for the unexpected, eDiscovery is right for you.
And a new e-discovery project starts. It could be from claims, bonds, internal audit, HR, any department. We get e-discovery projects from every area of the company, which is what makes Exterro valuable to us. Usually when I get my first call, or I get my first email on a given case, we’ll have a case summary call or meeting. We conduct an overview that tells me how long that project is going to be. An internal investigation is almost never shorter than a week. Other projects are usually about six months, but they won't be my hot cases for six months. That tends to be three months. They're going to be on my radar and having me watch pretty closely for at least three.
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We have a playbook we use; it helps us meet both deadlines and project budgets. Usually, outside counsel will want certain pieces of information such as, "When did your email retention policy go in place? Do you have an information governance policy? Do you have information governance retention schedules?" Things like that are all standard processes for us. These are all part of our eDiscovery playbook. After that first call ends, I create an email and send it to all the people involved. I summarize the call and I summarize the action items for the different members of my team. I might say to my litigation holds specialist, "Just a reminder, send over a lit-holds template to outside counsel.” I might tell the outside counsel, “Remember you're going to get me a time frame for these collections, as well as the custodian names." It could be I'm saying to my eDiscovery analyst, "Can you get a copy of the email retention schedule?" It's different people for different things. Then I send it these items out with the meeting summary.
I usually have our lit-hold specialist, my eDiscovery analyst, any internal counsel that's involved, and me on that first call with outside counsel. The first question I ask is, "When do you see production happening?" If a firm has dealt with us, they know the flow we follow. So they might say, "I see it happening the end of next month.” Then I know we can follow the normal steps, and it immediately goes on my calendar. If they're new, I've had counsel call and say, "By the way, my production's due in two weeks." That means we’re going to do almost nothing else for two weeks to meet that deadline. It’s very hard to have a five-day turn around and make sure everything is done exactly as it should be. It requires an elevated level of diligence. If the deadline is that tight, you have to move faster and collect everything at once, and make sure that the interviews go out the first day, because you've got that deadline, and that's what you base action items on.
We provide a hit report for every group of search terms related to a given e-discovery project. If counsel give us ten terms, either I or my analyst will create a hit report for them. We'll send that out to the group to say, "Here are the results of the searches." I will also give a little commentary; for example, "These terms brought in 100 thousand hits. You really need to bring that down and think about what we can do to define this search to reach the important documents. This set of terms one only got two hits, that might be too tight. This one didn't get any. You may want to re-look at this search.” If it's an internal investigation, I already know what I'm looking for, so it's a little different process. There, I would go to them and say, "I've downloaded three documents. I think these are what you're looking for. Can you please confirm and I'll go get the others? Since it’s three specific documents, I’ll label them “hot.” You can go in and you can look at them, download them, do whatever you need to."
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A good part of my day is always on information governance. For as many calls as I get for e-discovery, I get just as many calls for, "Hey, we found this data. We don't know what to do with it. We don't know how long to keep it. Can you help us?" You have to understand that if you're responsible for e-discovery, you're also responsible for information governance. It's how life's going to be and you learn to respect it. “We found this file cabinet, and it's full of documents. We don't know where it came from. Can you help us?" It could be IT saying, "Hey, we went into this drive and found 40 or 50 archives. We're not sure what's in them. We're not sure who owns them." I just got a call, not too long ago, "Hey, we found five thousand SharePoint sites. They don't have owners and we don't know how long it's been there. We need a strategy on how to manage them.” Quickly, I dispatch one of my team to meet with the individuals involved. We need to understand the data and determine what next steps need to be taken. I jump in if I need to. We then figure out what the data is, what our retention obligations are, confirm there’s no connection to an existing legal hold and then either preserve or dispose of the data as appropriate to our legal and regulatory obligations.
When you have a new case, you have to go to that your data map and say, "Okay, where would that data be? The case is from claims, or bonds, HR, or legal. What do they keep their data?" Then you look through your map and determine what you have to chase down. You need to know where to find your data – it’s critical. The key to that is maintaining a data map—you don’t want to wait until you’re in an urgent situation. Create your data map now. If I'm in a meeting and I hear the name of an application that I haven't heard of before, I write it down, I write the person who mentioned it, and I give it to my team, so they can start chasing it down. Generally, now, if people are putting in a new application, the infrastructure architect will contact us and say, "Hey, we're putting in this. It's got this kind of data. What should we have for retention?" We can then add it to the data map before it appears in a case. We definitely are on the clean-up side. We document, have a consistent process and we clean. For everything we see, we ask: do we need to keep it? Is it on a litigation hold? If it's not, has anyone touched it in ten years? They haven’t touched it, what's the retention requirement? If we hear that the retention is only five years and it’s ten years ole, we get rid of it, create a destruction certificate, and we keep going. It's definitely a process we follow all the time.
We are very diligent about always try to document what's been done and what hasn't and why on every project. When did the case start and who are the custodians? What costs are involved? What keyword searches did we do, and what data repositories did we go to? At the end of every matter, I do a summary of the case. We debrief on what can we do better next time. We’ve built an eDiscovery database we call eTracker. Every ounce of information on a case is contained there. It’s up to date to the minute and we rely on it greatly. At the end of a case, we compare what we spent to what we would have spent if we took the case outside of our process. The savings is huge and is great incentive for both my team and senior management.
When I meet with internal audit, or I meet with HR, or internal investigations, I always ask, "What's the silver bullet?" What's going to get this case finished quickly?” On days I can hand deliver that document or information, that's an awesome feeling. On days that we have a very large case, or I look at my case board and there are no, "Oh my God, we're going to miss that deadline," items, that's a really good day. When I get a call and my team is asked to partner with another group on eDiscovery or information governance matters, that’s a day I know we’re making a difference. It’s very uplifting.
Starting in e-discovery, you need to understand it just takes time. You need to learn the environment. You need to learn the process. You need to learn what are those key things that should set off a red flag.