While there is a general misperception that project managers are merely drones moving mindlessly from task to task, the reality is that project managers play a critical role in the success of any project – particularly in ediscovery. The simple fact is that the effective execution of an ediscovery project is driven by process and reinforced by extensive preparation and organization speaks directly to the value of both strong ediscovery project managers and well thought out ediscovery project management methodology.
The Ediscovery Project Management (EDPM) framework consists of four important elements:
Determining Initial Scope
First thing’s first—it is important to understand the overall objectives as well as the legal requirements associated with any ediscovery project management matter. Additionally, under the Federal Rules of Civil Procedure, the parties are required to meet to discuss the scope and issues regarding discovery and particularly ediscovery. In this endeavor, parties must consider one another’s requests, pleadings and communications. Also, to avoid potential spoliation issues, it is critical to determine the parameters of the applicable litigation hold. Through the entire process, both sides must satisfy Fed. R. Civ. P. 26(g), which imposes a duty on the attorney to certify that he or she conducted a “reasonable inquiry” into the facts of the law supporting each discovery request.
Setting a Schedule
Singer Andy Partridge once stated, “We’re the ninjas of the mundane”—an apropos thought for project managers. Scheduling can be tedious, but it’s an all-too-important step in conducting a successful ediscovery project. Within the EDPM framework, the parties must set a project schedule (sometimes dictated by the Court and/or local/federal rules) and discuss that schedule with third party ediscovery providers. A critical element to consider in establishing a schedule is the nature and complexity of the data. And of course, never forget the power of the court to impose case management, scheduling orders, and status conferences.
In the context of litigation, cost is balanced with evaluated risk and perceived value of winning OR controlling loss. The EDPM framework demands the development of an initial budget estimate, at which point the parties should consider valuation and risk tolerance. During the course of an ediscovery project, routinely monitor actual costs – a step that can be built into scheduling and communication plans. Finally, if a party believes that discovery will be unduly burdensome, that party should consider making a cost-shifting argument so that the other side must pay for their own request. Not only has recent case law supported cost-shifting (Vaughn v. LA Fitness), but it is bolstered by the proportionality standard of Rule 26(b)(2)(C).
Last but definitely not least, it is crucial in any ediscovery endeavor to maintain proactive communication between the end-client, counsel and third party providers. To accomplish this goal, create a reporting system and establish a communication plan – who should get what information when and from who. Account for geographic and time zone differences, allowing for 24/7 worldwide availability; doing so will pave the way for future successful projects.