According to a recent Gartner survey, legal leaders are struggling with their workload since COVID-19. Along with severe cutbacks to mitigate the economic effects of the COVID-19 pandemic, legal leaders are simultaneously experiencing a higher volume of work related to labor and employment (44%), government affairs and relations (42%) and regulatory and compliance matters (39%). To support unplanned work, two-thirds of legal leaders are pulling resources from other workstreams to support unplanned, high-urgency work.
Unplanned work is particularly taxing on legal departments due to inherent inefficiencies and waste in dealing with new and emerging issues, such as delivering “overly thorough” advice (52%) or duplicating activity by reworking initial analysis and recommendations (58%). In fact, an estimated 20% of time spent on unplanned work is wasted. According to Gartner, the key to reclaiming some of those wasted hours is to embed decision principles in the organization to reduce the inefficiencies in the execution of unplanned, high-urgency work. This includes developing and then communicating controls and processes that: (1) guide resourcing decisions by clarifying how to act on unplanned work, offering a clear overview of all the external resources at a lawyer’s disposal; and, (2) codify when and how to engage outside counsel and vendors.
In keeping with the findings of the Gartner survey, we have compiled the following eDiscovery best practices strategies based on the experience of we have forged over decades of experience and thousands of client matters*:
Strategically apply technology
The corporate legal toolbox needs to keep pace with change. However, many law departments continue to use old school technology that purports to provide early case assessment (ECA) capabilities. They are effective for collection, search and preparation of ESI, but do not actually provide actionable intel to legal teams and their counsel on whether to settle or proceed with the case. Thus, despite the goal of limiting data for review, documents are still sent to vendors and outside counsel for a full first-pass review when in fact a true early analysis might indicate either no relevant documents exist to support the allegation, or that settlement, in fact, is the best strategy.
Next-generation ECA tools front end-analytics with tools such as predictive search, interactive text mining tools, automatic document summaries, sentiment and entity detection, and concept analysis to provide valuable upfront information on case strategy. Through the strategic application of analytic tools, legal teams gain unprecedented early insight and are empowered to make rapid data-driven decisions. The result is lower risk and cost, less re-work and, in some cases, the elimination of an expensive document review exercise.
Have a standby investigations team for when that high-urgency investigation hits
When a regulatory, compliance or internal investigation hits, the clock is the enemy. Leveraging the expertise of an experienced investigation team, whether internal or external, allows corporations to get the critical facts faster and proactively manage exposure and risk.
Limit human review of data as much as possible
Document review is the most expensive stage of discovery—making it the most immediately impactful stage at which to control and limit outside counsel spend. Not surprisingly, 25% of outside counsel spend is just for document review. The most impactful review services to the legal department’s bottom line will provide budget certainty upfront with a fixed-fee arrangement (similar to an alternative fee arrangement, or AFA), integrated attorneys and technology (including technology-assisted review based on continuous machine learning protocols), a playbook that outlines the respective roles and processes for all stakeholders, development of project objectives (e.g., recall and precision goals) and metrics tracking from the inception through project conclusion. Notably, when managed review quality is exceptionally high throughout the review, outside counsel quality control (QC) review can be reduced from the standard 20 percent to 2.5 percent, saving tens if not hundreds of thousand dollars in review costs—per matter.
Develop repeatable processes
Whether managing data internally or working with a partner, standardizing workflows and centralizing technology can help legal departments gain control over data and ensure consistency across all cases. This eliminates redundant efforts often conducted by outside counsel and vendors and establishes efficiency-promoting best practices. A well-thought-out playbook should cover the entire discovery process, perhaps by type of matter, from data identification and preservation to collection and collection formats, processing, loading, ECA, reviewing and producing data. The process should include determining what types of searches will be used, how data review workflows will be organized and the respective roles and pass-off points for internal reviewers, managed review teams and outside counsel. As circumstances change over timing, the playbook should be viewed as a living document that adapts best practices and processes.
By providing a defined approach to types of work, including high-urgency unplanned matters, codifying when and how to engage outside counsel and other third parties, and proactively identifying new and emerging issues early on, law department leaders can improve performance even in the face of increasing workloads and scarce resources.
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* These best practices are provided by OpenText™ and are completely independent of the Gartner report.