LPO 2.0 - MARRYING TECHNOLOGY AND TALENT IN A NEW ERA OF eDISCOVERY

LPO 2.0 MARRYING TECHNOLOGY AND TALENT IN A NEW ERA OF eDISCOVERYJEFFREY SCHULTZ

The art and science of document review have changed.1 The process has grown more complicated and the implications of miscalculating that complexity outweigh the challenges of ensuring compliance.2

As a result, litigants must marry longstanding talent with cutting-edge technology to engage in a new era of discovery.

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1 See Rowe Entm’t, Inc. v. William Morris Agency, 205 F.R.D. 421, 429 (S.D.N.Y. 2002) (explaining that traditional cost-saving incentives to keep paper document retention low do not apply to electronic documents because retention costs are negligible); A. Clay Rankin, III, What Every Litigator Needs to Know About Using Web-based Electronic Document Review Services, 75 Ala. Law. 36 (2014) (discussing the transition from the norm of linear review of paper documents to an increasing volume of electronic documents in discovery).

2 Mia Mazza, et al., In Pursuit of FRCP 1, 13 Rich. J.L. & Tech. 11, *3 (2007) (“The explosive growth of ESI has changed the very nature of discovery, with new electronic complexities making the preservation and production of evidence far more challenging.”); See also, e.g., Mt. Hawley Ins. Co. v. Felman Prod., Inc., 271 F.R.D. 125, 135-36 (S.D. W. Va. 2010) (holding that, despite very sophisticated safeguards put in place, privilege for a mistakenly produced email was waived because reasonable steps were not taken to prevent its disclosure).

The rise of the

Analytical Subject Matter Expert

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THE RISE OF THE ANALYTICAL SUBJECT MATTER EXPERT /04

01The shift in the paradigm of legal work is diverging from exclusive performance in a law firm with little visibility to matters that have defined points of entry and exit.

To effectively navigate that engagement, every matter now requires an expert, who can integrate the needs and requirements of all stakeholders according to a preset budget and core standards of quality.3

This authority needs to have legal knowledge, an understanding of project management

methodology, and the ability to implement the latest technology to produce

memorialized defensible deliverables.4

In fact, the shift in the paradigm of legal work is diverging from exclusive performance

in a law firm with little visibility to matters that have defined points of entry and exit,

with fixed budgets, and client-driven outcome metrics.5

3 See The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Second Edition, 17 (The Sedona Conference Working Group Series, 2007), available at https://thesedonaconference.org/publication/The%20Sedona%20Principles.

4 See Ashish Prasad, et al., Cutting to the “Document Review” Chase: Managing a Document Review in Litigation and Investigations, 18-DEC Bus. L. Today 57, 60 (2008).

5 Peggy Kubicz Hall, I’ve Looked at Fees from Both Sides Now: A Perspective on Market-Valued Pricing for Legal Services, 39 Wm. Mitchell L. Rev. 154, 195 (2012) (“Law firms need to ... become best-in-class project managers.”)

THE RISE OF THE

ANALYTICAL

SUBJECT

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Successful participants in the next generation of legal process outsourcing will use key tools to defensibly and transparently drive innovation.

Partner with Resource-Rich Support Teams

Given this evolution in the legal landscape, law firms will need to operate more efficiently

in an environment that values transparency and rewards adherence to corporate

demands while managing the pressures of cost containment. As a result, knowledge

and experience are the new currency of modern discovery.

In addition to project management, legal teams must understand how to leverage

technology to gain advantages in process and quality, rather than simply submitting to

technology.6 Successful participants in the next generation of legal process outsourcing

will use key tools to defensibly and transparently drive innovation.

6 See generally Toby Brown, The Law Firm of the Future, 50-APR Hous. Law. 34 (2013).

THE RISE OF THE ANALYTICAL SUBJECT

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Use technology to create performance metrics, identify potential weaknesses or coding errors, and implement quality control concerns.

Employ Telling Technology Techniques

As the market shifts, each matter is becoming more unique and the ability to customize

your approach with different levels of analysis is essential.7 Teams should employ

predictive coding and clustering, but by weaving them into quality control protocols

based on dynamic project management principles instead of relying on them as

solitary solutions.8

It is the ability to effectuate the end-to-end eDiscovery processes by developing a

best practices project plan, engaging the best talent, and seamlessly executing the

project plan, that will distinguish the analytical subject matter expert and excellence in

project management for LPO 2.0. The core skill set requires fully leveraging technology

to construct efficient and effective workflows, create actionable performance metrics,

develop defensible and auditable matter-specific quality control regimes, and generate

timely and accurate deliverables. Each element is part of the project manager’s toolkit,

which enables enhanced decision making and proactive planning.9

7 Ralph C. Losey, Predictive Coding and the Proportionality Doctrine: A Marriage Made in Big Data, 26 Regent U. L. Rev. 7, 68 (2013) (“In order to make a valid estimate for bottom-line-driven proportional review, you must closely study the case and review project goals.”)

8 See Id. at 57 (“[S]econd-pass review is required in most cases to preserve client secrets and confidential data ... .”); Prasad, et al., supra. 9 See Hall, supra.

THE RISE OF THE ANALYTICAL SUBJECT MATTER EXPERT

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The

LPO 2.0 Revolution

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02It manages automated review expectations by aligning technology and talent.

As technology and talent continue to converge, they are accelerating the LPO 2.0 revolution. That transformation is characterized by enterprise-focused relationships that recognize the value of holistic assessments, anticipate cross-border transactions, and address the need for greater scalability.

It also assigns a high value to partnerships with outside providers that can operate

beyond a single matter to support an organization’s entire operation. And, it manages

automated review expectations by aligning technology and talent to maximize the

potential of predictive coding.

THE LPO 2.0 REVOLUTION

Recognize the Value of Enterprise-Focused Relationships

In modern eDiscovery, it is critical for institutions to work with partners that have

enterprise-level experience. It is only those project management teams, who are familiar

with large-scale bet-the-company litigation that can truly navigate the complexity in the

current era. They are uniquely suited and positioned to assess and anticipate the most

critical elements of discovery, including cross-border litigation.

In the current flattening global landscape, the only certainty is that unfamiliarity is likely

to arise at some point in the litigation lifecycle. For that reason, legal teams must be

prepared for cross-border challenges.10

It is not sufficient to simply recognize the possibility of multinational, multilingual, or

multiparty matters. Sophisticated teams must anticipate and expect to address privacy

directives from overseas regulators, restrictions on data transfers, and a need to evaluate

data from a variety of sources.11

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The only certainty is that unfamiliarity is likely to arise at some point in the litigation lifecycle.

10 Juan M. Alcalá, Transnational Disputes in a Global Economy, 75 Tex. B.J. 512, 513 (2012) (“The number and breadth of cross-border disputes has grown as the economy has increasingly become more global.”)

11 See Id. at 516 (discussing France’s prosecution and conviction of a lawyer for turning over documents in compliance with a U.S. court order because the disclosure violated French privacy laws.)


Gauge the Depth, Capacity, and Scalability of External Partners

As a result, legal teams do not have as many external partnership options.12 Today, it is

essential to assess the depth of a prospective partner’s experience, the organization’s

capacity to manage an uncertain and dynamic process, and the ability to adjust when

a matter shifts unexpectedly. This evaluation process will help yield the best possible

relationship, yet also ensure that your team receives the highest level of support.13

For that reason, many organizations are shifting their practices from engaging wide

variety of outside providers, who each manage a distinct aspect of their discovery, in

favor of a more holistic approach.14 These companies recognize the inherent efficiency

associated with combining the resources available from a single partner and leveraging

them for maximum strength in the marketplace.

Savvy legal teams are focusing on key best practices, which include: comprehensive

strategic planning with their leading service providers; routine assessments of practice

support initiatives; recognizing the diverse abilities of their partners; and, continuously

evaluating the status of their matters to anticipate their future needs.

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Today, it is essential to assess the depth of a prospective partner’s experience.

12 See Rosenthal Collins Group, LLC v. Trading Techs. Int’l, Inc., 2011 WL 722467 (N.D. Ill. Feb. 23, 2011) (sanctioning a party for its vendor’s misconduct).

13 See Margaret M. Blair, et al., Outsourcing, Modularity, and the Theory of the Firm, 2011 B.Y.U. L. Rev. 263, 280 (2011). 14 See Cassandra Burke Robertson, A Collaborative Model of Offshore Legal Outsourcing, 43 Ariz. St. L.J. 125, 148 (Spring 2011) (“For large

corporate clients, the solution to the resource dependence problem may involve consolidating work so that a smaller number of outside firms perform their work... .”)


Value Scope and Reach

As legal teams become more sophisticated, law department and law firm leaders

recognize that the scope of a provider’s resources, as well as its experience, are

critical factors in both predicting the outcome and gauging certain prospects for

success. Similarly, it is essential to evaluate the reach of an external legal team and to

understand how its ability to provide guidance beyond the instant matter can impact

an organization’s long-term strategy.

Overcome the Myth of Technology-Assisted Review

Despite the focus on the promise of technology-assisted review, universal acceptance

remains elusive.15 While courts have essentially validated it use,16 and corporate legal

teams recognize the value of analytics in reducing data volumes, it ultimately remains

a human-powered solution. Project managers and senior legal analysts must provide

guidance to create clarity in an often-complex maze of unstructured data. The impression

that technology alone can evaluate, categorize, and distribute information with precision

is a myth that every legal team must debunk before progressing. Doing so will help

them find value in the project management, early case assessment, and information

governance techniques that now define litigation.

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15 See generally Yablon & Landsman-Roos, Predictive Coding: Emerging Questions and Concerns, 64 S.C. L. Rev. 633 (Spring 2013).16 See, e.g., Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y.2012) (“This judicial opinion now recognizes that computer-

assisted review is an acceptable way to search for relevant ESI in appropriate cases.”)


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LPO 2.0 Project Management

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03Like most professions, the legal community has become customer-centric.

As the legal industry evolves, the nature of litigation spending, maturation of analytic models, and dynamic skill set required to address an increasingly complex set of challenges is accelerating the pace of change.

For that reason, legal teams must recognize the solutions available and apply them to

new client expectations.

Like most professions, the legal community has become customer-centric. As a result,

the leading organizations that support law departments and law firms emphasize the

critical nature of consumer preferences, as well as the role that project management

protocols serve in that process.17

17 See Hall, supra, at 206-207.

LPO 2.0 PROJECT MANAGEMENT

Study Your History to Overcome Future Challenges

Given the renewed commitment to transparency in modern project management,18 it is

essential to understand the steps a team takes in any given matter to predict the utility

of its future plans. In fact, studying the history of a matter and an organization’s approach

can often guide an outside provider’s strategy. As such, it is essential for legal teams and

their outsourced providers to reflect competence on each aspect of a given matter while

also showcasing a defensible level of confidence. This combination allows internal and

external teams to seamlessly collaborate because they must approach each element of

project management in the most holistic manner possible.

Foster Long-Term Relationships for a Long-Term Future

Experience and longevity tend to distinguish symbiotic partnerships, particularly in

large-scale litigation. Legal teams that are familiar with their external providers and

the philosophy that guides their approach are often linked for extended periods of

time, rather than for a single case.19 As a result, those organizations that want to build

consistency and accountability into their operations are generally well served to foster

long-term connections to their most trusted advisers.

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18 See Robertson, supra, at 169 (“[P]arties to successful outsourcing were likely to report that their dealings with each other were “honest and transparent.”)

19 See Id. at 151.

LPO 2.0 PROJECT MANAGEMENT

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LPO 2.0 Redefines Partnershipsand seamless resource combinations

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04The distinction between the internal legal team and the external partner is fading.

LPO 2.0 redefines how organizations work with their external providers. It represents a new era in how outside partners deliver support. The distinction between the internal legal team and the external partner is fading.

Today, it is a much more unified group that represents a convergence of technology

and talent, rather than a disconnected network haphazardly approaching key

aspects of a larger matter.

As litigation management evolves, the application of complete case solutions that

simplify the complexity becomes the objective. It is, therefore, essential for legal

teams to operate in a coordinated manner that permits them to effortlessly adjust

their strategy when necessary.20

20 See Milton C. Regan, Jr. & Palmer T. Heenan, Supply Chains and Porous Boundaries: The Disaggregation of Legal Services, 78 Fordham L.Rev. 2137, 2170 (2010).

LPO 2.0 REDEFINES PARTNERSHIPS AND SEAMLESS RESOURCE COMBINATIONS

Create Longstanding Partnerships

Given the focus on cost containment and efficiency in legal services, the most successful

litigation teams create long-standing relationships with a select group of outside

providers who understand their specific business units, as well as the industry at large.21

Those who acquire institutional knowledge of any given field and recognize the unique

character of an organization are often better suited to supporting that institution over

the long term.

And, despite all of the enthusiasm for technology-assisted solutions, the only way to

realistically reach the potential of any tool offers is to combine it with a talent pool that

is equally innovative and dynamic.22 Those who choose one over the other tend to find

themselves out of balance for the entire duration of the case.

They are either too reliant on technology, or lacking in resources to support the

personnel available to them. Those organizations that find an appropriate equilibrium

realize the promise of both.

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The only way to realistically reach the potential of any tool offers is to combine it with a talent pool that is equally innovative and dynamic.

21 See Robertson, supra, at 151. 22 Yablon & Landsman-Roos, supra, at 645-46.


Re-examine the Role of Human Capital in a Technology-Driven Environment

In contemporary litigation, the ability to manage multiple stakeholders is a critical skill

that only the most experienced legal teams apply. As a result, it is essential to re-examine

the role of human capital in a tech-focused world. Those teams that capably navigate this

task often pair particular personalities with the objectives to which they are assigned.23

In addition to simply enhancing productivity, efficiency, and cost-effectiveness, leveraging

the skills and talent of an experienced team can build client confidence, as well as ensure

security. That integration is increasingly defining the level of trust sophisticated project

managers to have an intuitive understanding of the tools that provide the framework for

the entire process. It is a true marriage of technology and talent in the LPO 2.0 era.

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The ability to manage multiple stakeholders is a critical skill that only the most experienced legal teams apply.

23 See Robertson, supra at 156-57.


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ABOUT THE AUTHOR

JEFFREY SCHULTZ, National Legal Project Management, is responsible for the operations

and management of attorney document review projects undertaken by Kelly Legal Managed

Services (KLMS). He supervises the execution of cost-effective and efficient projects, which

deliver defensible, documented and memorialized work-product. Throughout his career, he has

lead many large-scale document review projects and trained project managers, team leaders

and reviewers on the essential eDiscovery procedures for generating timely and effective

deliverables to law firms and corporate clients.

For more thought leadership go to talentproject.com

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