Becoming the Focal Point: Using E-Discovery Process and Technology to Bring Value to Business Units and Upper Management
By Jim Gill
Tom Mullane is a veteran in the e-discovery industry, currently working as the E-Discovery Process Manager at United Technologies Corporation. UTC is a global company with various business units, a quarter of a million employees worldwide, including 250 in-house attorneys, and Tom, along with his team, project-manage all e-discovery operations.
Additionally, Tom is involved in process improvement to ensure continued compliance with changes in the law, as well as new systems which have built-in e-discovery tools for controlling preservation and collection of any new data sources that come online for litigations, investigations, et cetera.
Like most people in e-discovery, Tom didn’t start out there. “I think, to go way, way back,” Tom says, “I've always had an interest in law, but I've been an IT person for a long time. I took a lot of legal classes back in the dark ages when I was in college and enjoyed that, but then got into IT. I worked in desktop for a long time, worked on a server team and with some network stuff, some project management, and IT security. At one point, UTC was talking about this thing called e-discovery and bringing it in-house, how it was sort of a crossroads between legal and IT, and I raised my hand.”
In the past, a lot of organizations used email to communicate holds and managed custodian hold-tracking with spreadsheets. If you were really sophisticated, you might have a spreadsheet for each hold, and a spreadsheet that managed custodians.
Communication was difficult, with reminders and releases being particularly poor. The first hold notice wasn’t too hard, but reminders and follow-up was tougher, because it wasn’t automated. And once the hold was released, it often went without any notification at all. The focus seemed to be on communicating the hold rather than managing the custodians, or managing even the e-discovery effort overall.
Tom Mullane explains: “I'm definitely fond of saying that documenting a diligent discovery effort is almost as important as actually doing a diligent discovery effort. If you don't document your diligence and reasonableness, you find yourself in as much trouble as if you hadn't been zealous and thorough to begin with. A lot of that was missing back in the early days when folks were just struggling to figure it out, and the onus really wasn't on a holistic solution. It was really on hold communication and, perhaps, ad hoc collection.”
With this type of approach, there were often broad collections and preservations out of fear that something would be deleted. But once it was collected, it was often reviewed linearly, which resulted in high cost. Tom says, “This stems from the general notion that attorneys’ main priority is risk reduction. Whereas, on the IT side of things, they’re looking more at process, efficiency, and security. And, IT people look to technology for that solution.”
Most organizations today look at their process first, optimize it, and then begin to look for the best tools that will support that process. Tom says, “With any tool that you buy, flexibility is going to be a key factor. Nobody wants to buy a product anymore that's going to dictate the process, which is what some solutions tend to do. A lot of products require you to change a process that works for you, and no organization should have to do that.”
Tom continues, “Over time, what we learned to say to technology vendors is, ‘Nice to meet you. Here's how we do things, here is our process, and this is how we do e-discovery. Show me your product, how your product fits in with what I'm doing, and the value your product brings.’”
Once a technology decision has been made, the process of implementation begins. Tom says, “Whether it is implementation or whether it's an upgrade, I think it’s a very good time to look at the product you selected, your process, and industry best practices, and how well that these three things align.”
Tom’s list of things to consider during implementation:
- How much customization is necessary to do what you need to do (zero is ideal)?
- If you need an excessive number of customizations, it might be wise to ask why?
- Is the current process compliant with the rules and the primary jurisdictions that you're litigating in? What about the federal rules?
- Is your process repeatable and defensible? Can you justify it? Can you explain it?
- Is your process efficient? Can it be made more so? Look at each step. Why are you doing it that way?
- What systems will your solution touch? What data does it need to be most efficient?
- You also need to know who's going to use it. Who's going to use this system internally? Is it paralegals? Is it the IT people? Is it lawyers? All of the above?
- What do they need to be more efficient, and what information do they need to do their jobs effectively?
- Are there limits you want to set on access to the features of the product?
- Consider the metrics and reporting you need. If you can’t measure it, you can’t improve it.
- How are you going to handle data: preserve it, collect it, record it? Reporting is the point I would drive home during implementation.
Using E-Discovery to Bring Value to Business Units and Upper Management
By providing a powerful technology solution and a strong process behind it, your e-discovery team will be able to provide immediate and recognizable value to business units and to upper management: letting them know where costs are coming from, if there are ways to cut them down, and if they can be predicted for better budgeting?
The central team can also expand and serve as an internal consultancy when you have e-discovery tools that can interface with outside counsel and in-house lawyers, allowing them to talk about what makes sense for a matter, and how it aligns with your process overall. Further, the team can dig into new actions, like managing or helping to manage implementations of new data stores, whether it's SharePoint or your company’s use of social media.
Tom states, “It's a lot more than issuing holds and retrieving data. Here, we look at cost-reduction strategies, and we take the time to look at our vendors, the cost to the vendors, security of their facilities. It's taking a lot off our plates, and we're able to build out in multiple directions and provide a higher-level service.”
He continues, “Additionally, we've certainly become much more efficient and much more aware of what we're doing. Looking at the product itself, for us, it's really all about access to information and proof that a well-developed and thought-out process was followed: knowing who's on hold, when key custodians are leaving the organization, what information needs to be held onto, and maybe, more importantly, what can be deleted.”
Tom Mullane’s Lessons Learned
- “Make sure in terms of setting expectations that people are clear on the amount of effort that's going to go into implementing this, such as the need for a lot of hands-on training. You need to understand that this is a several-month effort. This isn't something that you do by the end of the month. There's a lot of planning. There's a lot of meeting. Make sure you have buy-in from not only your upper management, but from the folks who are going to actually use it at the business unit level. There's really a lot of effort that goes into it, and you need to test, test, test.”
- “Look for value-adds to the system, whether it's in the reporting or, as I mentioned earlier, to engage those business unit lawyers. There is other information in there that a lot of people may find useful, whether it's investigations or your corporate business practice office or others. There may be things in there that are useful to them. So, I would look for things like that, so that you’re not just improving your process and becoming more efficient, but you’re finding out who else can benefit from the knowledge that's in this technology.”
- “Try to limit your customizations. There are a lot of different products. Pick the one that you think is a good fit. Pick the one that you know that you can mold to what you need to do without customizations. I don't know if it's possible to be customization-free, but that would certainly be the goal. Build your product around your process, not the other way around. The two certainly should complement each other, but you want to make sure that you don't have the tail wagging the dog here.”