6 Reasons Why E-Discovery Professionals Need Project Management

While legal project management (LPM) is, in essence, the application of project management principles to legal matters, for some reason, many organizations have been slow to embrace LPM. Oftentimes, especially in e-discovery, legal teams stumble through a reactive process, issuing legal holds, preserving electronically stored information (ESI), then collecting and reviewing it in ad hoc, and costly, fashion. 

Of course, it doesn't have to be this way. Organizations can and should implement LPM principles in order to gain control over costs, time, and perhaps most importantly, risk. However, as any expert (or novice) in human behavior can tell you, people all too often fail to do the things they "should." In e-discovery, though, the consequences can be significant. What are the problems that implementing LPM can help you avoid? Here are six to get you started--and a case law example that proves why they're so important.

1. Poor Custodian Identification and Tracking:  Proper identification of custodians and their data sources is fundamental to e-discovery success, because a production is only as good as its data sources. Examples of poor discipline in this respect include failure to identify likely custodians when litigation becomes "reasonably expected;" failure to conduct custodian interviews, which often lead to better and additional custodians; and accidental loss of data sources (e.g., laptops, custodial files, mobile devices) when a custodian leaves the organization.
2. Poor Legal Hold Discipline: Legal holds are typically the first notice that an organization’s workforce receives in connection with upcoming litigation, and preserving ESI using a legal hold is often the first indication that an organization is taking its preservation obligations under common law seriously. It’s also an excellent opportunity for an organization to fail. Examples include using only a verbal hold notice; sending a written hold notice without any follow-up notices; and failing to escalate to a custodian’s superior when the custodian is non-compliant.
3. Poor Communication: E-discovery requires constant communication among inside counsel, IT staff, outside counsel, and experts. Negative consequences of poor communication include inadequate preparation of the designated person most knowledgeable (PMK) for 30(b)(6) depositions or designating someone who lacks adequate knowledge to begin with; not sharing log-in credentials to repositories with IT service bureaus; and failure to instruct expert witnesses as to which repositories to search.\
4. Lack of Protocols: Using standardized e-discovery protocols creates consistent, defensible results and prevents tasks from being missed. Some examples where lack of protocols have precipitated motions for sanctions include: choice of keywords or Boolean search requests; location of off-line repositories (such as back-up tapes); choice of which repositories to search; monitoring changes to employees (promotions, departures) that can lead to destruction of their data sources.
5. Poor Collaboration between Legal and IT: Unlike almost any other field, e-discovery requires an unlikely collaboration between two completely different areas of expertise: Legal and IT. As most lawyers would say, “I went to law school to avoid science and math.” Alternatively, most IT professionals would say, “I majored in a technical field to avoid writing.” This difference has caused numerous e-discovery headaches for each side. (For some great tips on this topic, check out this blog's interview with Gene McKelvey, titled "6 Tips to Bridge the Gap between IT and Legal.")
6. Sanctions: This is really the big one, that most people worry about. The most common causes for sanctions, according to a study published in the Duke Law Journal, fall into three categories: the failure to preserve ESI, failure to produce ESI, and delays in production of ESI. All three of these obligations can be turned from reactive exercises to proactive business processes by embracing project management principles and applying them to e-discovery operations.

Case law provides numerous examples of the value of having defined legal hold processes in place prior to the obligation to preserve. One instructive example is the case EPAC Technologies, Inc. v. HarperCollins Christian Publishing (M.D. Tenn. March 29, 2018). Here's a quick summary of the case, along with some expert advice.

Overview

In this contact dispute case, the plaintiff motioned for spoliation sanctions against the defendant for the spoliation of electronic data including “at least 750,0000 messages and attachments.”

In 2012, when notice of pending litigation was received, the defendant sent a boilerplate legal hold that did not include any guidance or follow up instructions on how to preserve data to employees. On top of this, the records manager was not notified of this legal hold until three years after the duty to preserve was triggered, meaning thousands of documents were deleted under the corporate document retention policy.

The plaintiff motioned for spoliation sanctions based on the defendant’s “willful blindness,” arguing it equated to an “intent to deprive.”

Ruling

• Minor Sanctions Ordered Under Rule 37(e). Since the court did not find that the defendant had an “intent to deprive” information to the plaintiff and the emails lost could be restored through additional means, the court only granted minor sanctions, including the plaintiff could re-depose witnesses after reviewing the missing emails and the jury would be instructed about the data loss.
• Tongue Lashing By the Court. Even though the defendant was protected from severe sanctions based on Rule 37(e), the court had harsh criticism of the defendant’s management of their preservation processes as “arrogance by management, lack of initiative by IT and a pitiable lack of legal leadership.”
• Bad Communication. A defensible preservation process starts with communicating the legal hold to all necessary stakeholders including IT. In this case, Legal did not consult IT about implementing the hold and never ensured that data would be preserved at the start of litigation.

Expert Analysis from Anne Bentley McCray, Partner, McGuireWoods

Rarely will execution of a legal hold, or any eDiscovery project in general for that matter, run perfectly smooth. You often encounter non-compliant custodians, computer malfunctions or unknown sources of data. What is important is to have a good, solid process that can be followed for all matters, including timely issuance of a hold and alerting IT. If you don’t have a process, engage outside counsel with e-discovery expertise to guide you through and defend the process. And don’t forget about paper and physical evidence!

For more information on how to implement project management principles in your e-discovery operations, download Exterro's updated Comprehensive Guide to E-Discovery Project Management, 2nd Edition today!