For document-intensive review projects, competent project management is vital. Early on, clients will want to identify a licensed attorney to serve as their e-discovery project manager. The Sedona Conference, the oft-cited think-tank for e-discovery, strongly encourages this approach. In its “Commentary on Achieving Quality in the E-Discovery Process” it states,
“Applied to the process of e-discovery, it is essential that the role of project manager be clearly vested in one or more individuals empowered by the client to manage the effort of counsel, vendors, and service providers.”
Even with a relatively narrow universe of documents, the effective tracking, supervision, and management of a major document review requires constant attention. Otherwise, clients risk inefficient and wasteful e-discovery legal spend.
Why is a project manager necessary? Let’s start with the administrative issues – tracking collections, vendor oversight, review team training and management – these responsibilities are essential to any document review, and require more than just a few hours here and there. Among other functions, a dedicated project manager will be required to:
(1) Address reviewer questions or technical hiccups as they arise, minimizing interruptions to the review.
(2) Quickly implement directives from outside counsel so that the pace and order of the review always aligns with the changing needs of the case, while keeping within production deadlines and budget constraints.
(3) Monitor and document the review progress to minimize the risk of duplicative or inefficient tasks and to reduce the chance of costly miscommunications.
But there’s more. In addition to administrative issues, the e-discovery project manager is faced with numerous legal issues over the course of a review. For example, the project manager may have to:
(1) Address substantive questions from the review team regarding the responsiveness or confidentiality status of documents.
(2) Render final decisions on whether the attorney-client privilege or work-product doctrine applies, and whether the privilege log description are legally defensible.
(3) Evaluate the significance of potentially hot or key documents and succinctly communicate their impact to the client or other members of the litigation team.
These are just a few examples of the types of important decisions that require legal knowledge, judgment, and training that necessarily arise throughout any major document review.
Given the demands and skill set required of the e-discovery project management position, what are a client’s options? Let’s explore the possibilities.
In-house counsel: While in-house counsel usually plays an important role in managing any litigation or investigation, it generally does not have the time to dedicate to full time management of the e-discovery process for massive document reviews. There are simply too many other moving parts to the case. Active supervision is advisable, but day-to-day management is generally infeasible.
Junior associate from the client’s outside trial counsel: Indeed, junior associates from the client’s outside trial firm are often capable of performing the role of e-discovery project manager. However, this is an expensive choice. Since management of a major document review demands full time attention, using a junior associate can devastate a litigation budget. Junior associates also often have competing obligations on the case, including witness preparation or legal research, and thus are inevitably pulled off the full-time management of the review. Some firms have responded to this need by employing dedicated staff attorneys to manage their reviews. These positions allow for the full-time management of e-discovery but at more affordable rates than associates.
E-discovery vendor or staffing agencies: Many e-discovery vendors and staffing agencies now offer project managers to their clients. This is certainly the cheaper alternative for clients when compared to a junior associate or staff attorney from outside trial counsel. However, clients should remember that a manager from an e-discovery vendor or a staffing agency is unable to take responsibility for legal services. The next time you visit one of these companies’ websites, check out the fine print. There is almost always a well-placed disclaimer stating that the entity is “not engaged in the practice of law.”
Thus, if the project manager is employed by an e-discovery vendor or staffing agency, counsel is entirely accountable for her legal determinations and work product. As a result, additional time and expense must be spent by in-house or outside counsel to review those legal determinations and to supervise all of the work in order to certify the work product prior to production. As evidenced by a recently publicized e-discovery malpractice suit against an AmLaw 100 firm, the law firm that employs vendors or staffing agencies to conduct their review remains accountable for the botched e-discovery performed by these entities, and is potentially liable for malpractice to the client.
Discovery Counsel: An evolving trend is the use of discovery counsel for the role of e-discovery project manager. Discovery counsel firms focus exclusively on the management of e-discovery and on staying current on the relevant e-discovery case law. Discovery counsel typically partners as co-counsel with the client’s outside trial firm. Unlike e-discovery vendors or staffing agencies, discovery counsel firms are engaged in the practice of law, maintain legal malpractice insurance and do not face the aforementioned limitations with respect to rendering legal advice or certifying productions. Clients can achieve significant cost savings utilizing discovery counsel firms as they typically offer much more affordable billing for the full time management of the review compared to big firm associates or staff attorneys. With Discovery Counsel, outside trial counsel will not have to devote as much time to oversight in order to certify productions or make final legal determinations as they would if an e-discovery vendor or staffing agency were used, resulting in further savings for the client. While Discovery Counsel conducts the day to day management of the document review project, outside trial counsel can devote their time and resources to written discovery, factual development, depositions, motions, hearings, and trial strategy.
Careful selection of its e-discovery project manager gives clients the best chance of achieving the most efficient and cost- effective review possible.