In part one we explored why tensions can arise between the corporate client, the corporation’s e-discovery vendor and outside counsel assigned to the e-discovery matter.
In believe these problems largely occur because of a lack of clarity about roles, process, communications and timing — particularly how long e-discovery tasks take.
You need to tackle these early on at the onset of the matter. Following are a few key considerations and tips to build and preserve a positive working relationship between the corporation’s e-discovery vendor and outside counsel:
Project kick-off call – getting organized early
A matter kick off meeting with outside counsel is essential. It should address things like: case deadlines, roles, responsibilities, e-discovery workflow, communication protocol, service levels, specifications, cost and budget, and reporting.
All of these areas have to be adjusted to outside counsel’s needs, but still balanced against the corporate client’s expectations, established workflow and industry best practices. You must resist the desire or the call to `just get going’or `go get the data’ because a deadline is approaching.
At kick off provide the key documents that support the project such as the Service Level Agreement (SLA), project management forms or Statements of Work (SOWs) (see below). Outside counsel should share key matter documents such as the complaint so you can understand the facts and issues.
This can be a lengthy agenda and may not be something outside counsel is expecting, but usually over time they will see the value.
Clarity about e-discovery process and worfklow
Get straight with outside counsel about the overall e-discovery workflow from preservation to production, because every corporate client is different and each vendor uses a different combination of tools.
In particular, we often see confusion with outside counsel about the front end of the process in data identification, preservation and collection: what data there is, where, if and how it can be collected, by who and how long it will take.
One useful tool is a workflow diagram for the entire e-discovery process which shows where data is coming from and how it moves through it. Add to that graphic key `time to completion dates’ and it will be even more useful (see below).
Identify project dependencies that are responsibility of outside counsel. Dependencies in project management lexicon are essentially -if x is completed y can then be started/completed. Is also about time management. So if counsel can’t determine the search terms to use on time the entire e-discovery worfklow for search filtering, de-duplication etc. extends x numbers of days.
This is a great way to convey the shared responsibility for running the project right.
The Service Level Agreement (SLA) – task times
As a long term e-discovery provider to the corporation you should have in place a SLA that should cover every step of the e-discovery process you have put in place and the service levels for each.
You need to share this with outside counsel as soon as possible.
The core of an SLA is to detail how long it takes to optimally do task x. Include everything from time for initial response to an email, to time for creation of searches, to completing document productions.
Emphasize time needed for quality control (QC) at any phase of the process. Sometimes e-discovery is seen as an automated exercise. Yet much of e-discovery QC is still a rather manual eyes on process, thus its key to convey that if events shorten the SLA timeline for QC then errors will increase i.e. speed kills.
Tracking changing deadlines
There are few e-discovery technical or process problems that can’t be cured with sufficient time, but time is always scarce and potentially expensive.
Be proactive and contact outside counsel to make sure you are up to date on upcoming matter discovery related deadlines and use the SLA as a reference point.
Starting too late on a document review or a large document production is one of the most typical causes of tension and costly mistakes in e-discovery.
Also you will be juggling different projects so its equally important to know when a deadline has been extended so you can switch to other matters.
Often overlooked in the e-discovery field, the communication protocol details the who, why, what, where of communications between all the stakeholders.
These can take a bit of time up front to think about, but as a corporate e-discovery vendor you should already have this organized and it should be similar for each matter. Its is also often best represented as a flow chart.
The protocol also has to reflect roles and responsibilities.
Clarity about the details of project communication around a set of rules in this can avoid a leading cause of problems. For example, discrete one to one communications between vendor and outside counsel team members are usually the precursor to trouble, insist on e-mail distribution discipline. Follow a standard project management framework like RACI if it helps.
Also follow the practice of NASA “no verbal instructions”. Purely verbal project instructions are forbidden, memorialize in writing all project specifications and agreed actions from outside counsel or from the internal team.
But don’t forget that picking up the phone for a candid one on one can sometimes be better than public email chains where egos can become involved.
OC’s Litigation support
Make sure outside counsel’s litigation support is involved early and is a first point of contact in the communication protocol, because they usually understand the messy details of e-discovery best.
Partners and senior associates may drop out of the communications because they are engaged on motions and other-tasks. Usually the corporations e-discovery personnel will have more access and more in common with the outside counsel litigation support.
Also, litigation support personnel at law firms often have more continuity over a two or three-year matter than first or second year associates.
Be clear about roles and responsibilities between you and outside counsel’s litigation support and try to establish a close win-win relationship.
The obvious and not be overlooked, introduce yourself on the phone one on one to the outside counsel team that will be doing day-to-day work. This is in addition to the kick off meeting above.
Litigation support, junior associates, paralegals, these are your allies not enemies. You can both cause each other a lot of heartache if you become locked in a pseudo adversarial position.
Adopt the attitude that you want to help them succeed, they are under impossible deadlines and work late hours just like you.
There are of course many other considerations beyond the scope of this post but put the above in place will take you eighty percent of the way there.
In the real world, of course, kick off meetings that address all the issues don’t occur, or key players don’t participate. Sometimes as cases start small so addressing all those issues seems unnecessary or costly. People don’t read the project documentation you provide until it is too late, and so on.
But at some point if the litigation takes off these matters have to be addressed and it is best not done too late or piecemeal.
But remember, as hard as it may seem when tempers run high against late deadlines, you are on the same side.