As technologies and workflows have evolved, e-discovery has become less arduous – if no less important. To e-discovery veteran Sean King, that means there’s even more pressure on project managers to understand and tailor solutions based on the inherent uniqueness of every engagement. Below he discusses the mainstreaming of e-discovery and what that means given the unique character of each project. His remarks have been edited for length and style.
MCC: Please describe your background and experience in project management and hosting support?
King: I've been providing discovery management and consultation services, especially related to project management and hosting support, for more than 15 years. The most important thing I've learned in my career is the uniqueness of every client, especially with their projects. I've spent much of my career in Am Law 100 law firms as a litigation support professional providing consultation and best practices in managing discovery with a variety of technology solutions.
I used to joke that when I was on the law firm side, it was as if I was working for 200 firms because every partner I worked for approached their matters differently, with varied concerns and expectations. Those partners, and the firm’s associates, were my direct clients. While I had standards and best practices that I had developed over time, there were always modifications I needed to make – small things like how I communicated, how I tracked budgets, how I organized information. My approach to them individually made a difference in their satisfaction and in the overall value in the service I provided.
When I came to RVM in 2014, I wanted more direct interaction with our clients, and I wanted to have a more direct impact on how they approached their discovery needs. As my career has evolved, and I’ve worked with managing partners, associates, corporate counsel, and a variety of law firms, big and small, I’ve continued to learn even more that every client is different and sees value in different ways. Project Management is the means by which they see the value of the work flow and solutions we put in place. My experience has allowed me to manage and consult on government enforcement and investigations, handling SEC and DOJ subpoena responses as well as civil litigations for large pharmaceutical and other international companies in the U.S., UK and Asia. Those matters, in combination with the client expectations, require different solutions andproject management is how they ultimately get the best value for that solution.
MCC: With the December 2015 changes to the Federal Rules of Civil Procedure, and the regulatory environment shifting constantly, how do you advise clients on best practices for information governance and data retention?
King: The idea of reasonableness under the Federal Rules of Civil Procedure continues to evolve. At the end of the day, no matter what the federal rules currently are, I always advise my clients to have a solid, defensible workflow related to their discovery obligations. I strongly encourage them to invest the time and effort needed to create a document retention policy and consistent practices to adhere to that policy.
That’s not always practical, especially on the cusp of a subpoena or complaint. We manage the lemons we have and we make lemonade by ensuring that we outlined how we went about identifying the relevant information, how we prepared a good preservation practice, how we leveraged the rules to manage the scope and effort, and how we deployed technology to assess the data for a more competent culling and filtering experience. We go beyond keyword searches whenever possible and focus more on data assessment and how to reduce the effort required for review and production.
MCC: How can corporate law departments best prepare for discovery and investigations? What is the role of technology in the preparation?
King: First, have a really good sense of your network infrastructure and document retention practices and policies. Know what you have, know what you don't have, and know what would be really hard to get. Next, make sure your IT director, or the equivalent position, is your best friend. If you're the CLO or General Counsel, or a partner or senior associate involved in managing discovery, somebody with a strong IT background is a really good tool to have in your toolbox. That person can help you get organized and advise you on the best ways to manage data. That will put you in a better position to respond to discovery requests. If you know what you have from a data retention perspective, and if you know what your policies are, it becomes a lot easier to figure out how you should respond to a document request. Which custodians are relevant? Which data sources are relevant? What should you negotiate out of the potential scope of discovery?
If you're involved in several litigations or investigations, then a consultant or service provider can help you organize and navigate your way through it. Build a relationship with someone who has your back and will do the work efficiently, as well as provide the best options for newer technologies and workflows, which are important.
MCC: Tell us a bit about hosted litigation solutions. What are the benefits and drawbacks of a hosted solution relative to security, cost, convenience and risk management?
King: That’s a broad question. Hosted litigation solutions are systems that allow you to do a myriad of functions from data assessments early on, all the way through to document review and eventually production, as well as assist with further fact management if you are responding to or preparing for depositions. These tools include Eclipse, Relativity and other proprietary solutions on the market. They save clients tons of time and effort trying to organize documents, easily track document-level decisions like Privilege and Relevance, and provide greater flexibility in using advanced culling solutions like clustering, email threading or communication analysis – trying to figure out who's talking to whom and who might be the relevant custodians. They absolutely cost something, usually in the form of a monthly hosting or user fee, but you can reduce the impact on your legal team, IT team or your own network infrastructure by not having to manage and back up all of the data, which costs a lot for a corporate IT or legal department group to handle.
With regard to security, most of these systems and service providers have a variety of security mechanisms and certifications. Because of the nature of the work performed, it is seen as a basic requirement to have strong security to protect hosted data. As a consumer, you should know what the security protocol is from your hosted solution vendor.
In addition to being secure, these solutions are convenient. They have efficient work flows and searching mechanismsand they can be accessed with a variety of web browsers. So, if you use Internet Explorer, Chrome, Safari or Firefox, most of these solutions will support it. There's a tremendous convenience to being able to access these hosted solutions from any internet browser.
Finally, there are the risk management considerations. Most risk is minimized with defined and consistent workflows. If you have a good project manager, and if you have a good service provider that has experience with the technologies they're offering, your risk should be limited.
MCC: What are some of the fundamentals of project management that guide your collaboration with clients?
King: The work of project management in the e-discovery space has become much less unique than it once was. In the early part of my career, I was introduced as an e-discovery expert because I had knowledge that lawyers and others didn’t necessarily have. And that was enough as a “project manager”. Since then, the work we do has become a lot more mainstream. Clients have been using these services for decades, instead of just several years. We are now dealing with a market of educated consumers.
As a result, clients have higher expectations of their project managers. It's not necessarily about having the best knowledge. It’s about how comfortable a project manager makes a client feel during the engagement. How responsive were they to my needs? Did they match my level of urgency? Do they really understand what I'm trying to do? At the end of the day, we sometimes forget that clients are not looking to process data and do all the fancy technology work. What they really want to do is review the documents and produce what they absolutely need to. The technology is a means to an end, and that the end (i.e. review and production) are what is important. And they need to know that you see the end result the same way that they do.
Many times service providers, or other folks in our industry, get caught up in the selling of technology services and ensuring that clients are using the best technology or workflows when all they really want is to know that they are doing what they absolutely need to, cost-effectively and accurately. A good PM ensures that the client understands the value of the work being performed and shares the client’s expectations regarding the end result – rather than executing elegant workflows or pushing technology for the sake of technology.
MCC: Please discuss some of the differences between discovery related to government investigations and litigation.
King: As noted earlier, I've learned in my career that every discovery project is unique. That might be because of the clients, the law firm and the experience that they bring to the table, or the type of matter. Government investigations, I have found, tend to be broad. They can also be very fast. I've worked on several second requests, for example, where we've had to get through millions of documents – review and production – in less than 60 days. Civil litigation tends to have a schedule laid out by the judge or agreed to by the parties. And, the FRCP or other jurisdictional rules allow discovery scope to be negotiated. In government investigations, that narrowing doesn’t always happen. Instead, with less time to find information, you have to leverage technology to get right to the point.
In the end, though, both government investigations and civil litigation can leverage the same technologies. They allow you to produce a richer, more accurate and more concise data set and reduce document review costs and time, rather than having to quickly turn over a bunch of material without proper due diligence and review. The reasons you use the technology might be different for government enforcement and civil litigations, but the value is still the same.
Published December 29, 2016.