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Sedona Conference Highlights Project Management as Key to Quality

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I am delighted with the emphasis on project management in The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process
Eighteen months in the making, the May 2009 Public Comment Version was released following a Web conference on May 20, which introduced the paper.  Following up on The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods, released August 2007, the Commentary on Achieving Quality drives home the need to embrace project management and quality testing in electronic discovery. 

Because of the Sedona Conference's influence on judges who decide e-discovery disputes, vendors and lawyers will take notice. Lawyers should find their e-discovery processes under increased scrutiny. Expect to hear vendors and firms sing with increasing volume about, and waving this commentary in support of, their quality assurance processes.  Equivio Inc., in a recent marketing piece sent to the Technolawyer Community, suggests that "[i]n ten years time, people might look back and say that this paper was the watershed line, marking the great divide between how e-discovery was conducted before and after."1 While only time will tell whether this paper represents a "watershed line", it is certain to influence how judges and lawyers approach electronic discovery. 

What strikes me most about this Commentary, however, is not the emphasis on statistical sampling, measurement, and metrics. A number of influential cases have called for more sophisticated use of sampling in e-discovery: determining and testing search terms, for example.2 What strikes me is the Sedona Conference's emphasis on project management. This is the most direct, detailed, and influential non-vendor/partisan endorsement of project management in a legal context that I can recall. Sure, there is the EDRM Project Management Framework but, while it provides a useful framework for project management in an e-discovery context, it doesn't make as forceful an argument for the need for project management in e-discovery.

The Sedona Conference emphasizes the importance of project management in the very first principle of its new Commentary:

Principle 1. In cases involving ESI of increasing scope and complexity, the attorney in charge should utilize
project management and exercise leadership to ensure that a reasonable process has been followed by his or her
legal team to locate responsive material.3

Three things immediately stand out when I read this. First is the emphasis on using project management. Second is that the person exhorted to use project managment is "the attorney in charge" (emphasis added). Third is the call for the attorney in charge to "exercise leadership" in ensuring that the legal team follows a reasonable discovery process. The emphasis on a lead attorney taking overall responsibility for the management of an e-discovery project is what differentiates this Commentary from the EDRM Project Management Framework and vendor presentations and white papers on e-discovery project management. As I'll discuss in detail below, the Sedona Conference makes it clear that any e-discovery team must be overseen by an attorney.

Before proceeding further, it is important to note that the Sedona Conference does not endorse any common standard for project management (e.g. PMBOKand PRINCE2). The Commentary defines "project management" as "the discipline of organizing and managing resources (e.g., people) in such a way that the project is completed within defined scope, quality, time and cost constraints."4  Leaving "project management" broadly defined, the Commentary discusses in some detail the need for a well-defined process, stating that "[t]he first step, then, is the development of a well thought-out process in which the applicable review method can be applied." The process should be driven by the type of project. How you approach identification, collection, and review depends upon the nature of legal matter, the tools used, and the ability of your discovery team to leverage those tools. 
 
The commentary discusses the seven key "process elements":
 
  • leadership: the need for an attorney who can provide overall supervision--delegating work, but directing all the moving parts;
  • tailoring: as discussed above, the commentary emphases the need to customize your processes to the size and complexity of the matter at hand, you can't take a cookie cutter approach;
  • expertise: you need knowledge management and human resource processes that allow you tap the legal and technical expertise the project requires;
  • adaptability: implementing iterative processes that are capable of course correction--project requirements change, your processes need to to be flexible enough to change with the project;
  • measurement: the need for an appropriate level of validation and measurement;
  • documentation: you have to document sufficiently to "ensure coordination and communication within the discovery team and to increase the defensibility of the process"; and
  • transparency: you need to explain and defend what you've done; you should be able to explain clearly how and why you selected, implemented, monitored, and measured a particular process.

Of the above-listed process elements, "leadership" is the most important for lawyers to note. In discussing the importance of leadership in managing e-discovery projects, the Sedona Conference could not be any clearer in their support for the need of a single, identified leader to oversee all the moving parts of the discovery process:

An almost universal key to the success of any project is the appointment of a project leader, whose responsibility is to: "Lead the team in figuring out what the project is (planning, scheduling, and requirements gathering), shepherding the project through design and development work (communication, decision making, and mid-game strategy), and driving the project through to completion (leadership, crisis management, and end-game strategy)."5

The Sedona Conference is exceptionally clear in explaining why we need to have a senior, licensed attorney overseeing the process. The Commentary emphasizes the need for an attorney to act as "team leader" with overall responsibility for the e-discovery project.  The Commentary points out that an e-discovery team must be overseen by an attorney and that attorneys cannot simply delegate away project management and quality assurance:

Federal Rule of Civil Procedure 26(g)(1), which requires certification of accuracy and good faith in requesting and responding to discovery, necessitates a form of quality assurance by counsel based on an appropriate level of attention paid to ensuring accurate results.6

I found the Commentary's use of "Team Leader" a bit troublesome.  It emphasizes the need for a senior attorney to fill this role, which makes sense in that they use this term to denote a project manager who oversees the entire e-discovery team. In U.S. e-discovery projects, however, the term "team leader" usually designates the lowest level of management in a discovery project. U.S. law firms and legal staffing agencies tend to use the terms "project manager" and "team leader" quite loosely but, generally, "Team Leader" is not a title indicating much authority.  The Commentary alternately uses the term "Project Leader", which is better, but I would have preferred it simply used the term "Project Manager." Whatever title you assign to the attorney-in-charge's role in an e-discovery project, the Commentary makes it very clear that acquiring project management skills is required.

The Commentary is likely to do more than any other effort to date to promote Legal Project Management. In a few short paragraphs, it may have created a new career path. While the commentary emphasizes the need for attorneys to obtain project management skills, it is unlikely that most senior-level attorneys will want or be able to dedicate the time needed to master a new field. While they will need to understand the basics of project management so as to effectively oversee and direct discovery projects, they are likely to continue delegating the day-to-day tasks of monitoring, measuring, and documenting project progress to others. It behooves the attorney-in-charge to delegate such work to those with the project management and legal credentials, in other words: professional legal project managers.
 
Too frequently, attorneys leave the management of complex discovery projects to junior associates or paralegals who often are inexperienced and untrained. Often, good third-party vendors can pick up the slack and, indeed, many e-discovery service providers, both on the staffing and the collection/processing/hosting sides, will advertise their project management expertise. But here's the rub: ultimately, as an attorney subject to professional ethics and the rules of civil procedure, YOU CAN NOT OUTSOURCE YOUR RESPONSIBLITY TO MANAGE YOUR LEGAL PROJECTS. Yes, much of the on-site, hour-to-hour management tasks can be delegated to junior associates, paralegals, lit support teams and outside vendors, but someone has to oversee all the moving parts. This "someone" should be the attorney signing the 26b certification or at least a trusted senior attorney working closely with the attorney in charge. When senior attorneys treat legal project management as a dirty chore that is beneath them, and delegate it to those "beneath them," they are taking a big risk. The greater the power distance between the person ultimately responsible for the legal matter and the people tasked with managing the work, the greater the risk of communication failures and a Qualcomm-like fiasco.
 
I've only touched on one topic covered by The Sedona Conference's Commentary on Achieving Quality in the E-Discovery Process. Beyond emphasizing the need for project management in e-discovery, the commentary discusses how to leverage statistical tools to measure quality at various points in the discovery process.  The emphasis in the Commentary's third and fourth principles on quality processes needing to lower costs and decrease time and calling for greater cooperation and transparency within the adversary paradigm are important and every legal project manager should internalize this advice. It is the emphasis on project management, however, that distinquishes this Commentary from articles, white papers, and court decisions exhorting attorneys to adopt quality processes and measurements in electronic discovery. This emphasis on project management also extends this Commentary's influence beyond e-discovery. The need for better project management can be seen in the practice of law as a whole. As the practice of law becomes at once more complex and more commoditized, attorneys will find that both their clients and the judges they appear before will hold them accountable for errors, oversights, and inefficiences due to their unwillingness or inability to manage and document all the moving parts of modern case.



  1. Warwick Sharp, Top 5 Takeaways From New Sedona Conference Paper on Quality in E-discovery, TECHNOLAWYER COMMUNITY, May 28, 2009, http://www.technolawyer.com/member/archivehome.asp (search for keyword "Sedona" and May 28, 2009 in the advanced search, a retrieval fee may apply).
  2. See William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009); Victor Stanley v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008); In re Seroquel Products Liability Litigation, 244 F.R.D. 650, 662 (M.D. Fla. 2007).
  3. THE SEDONA CONFERENCE, COMMENTARY ON ACHIEVING QUALITY IN THE E-DISCOVERY PROCESS 2 (2009)[hereinafter COMMENTARY].
  4. Id. at note 25, citing KATHY SCHWALBE, INFORMATION TECHNOLOGY PROJECT MANAGEMENT 30 (5th ed. 2007). See generally Project Management, Wikipedia, http://en.wikipedia.org/wiki/Project_management.
  5. Id. at note 26, citing SCOTT BERKUN, THE ART OF PROJECT MANAGEMENT 8 (2005).
  6. Id. at 2.

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This page contains a single entry by Paul C. Easton published on June 10, 2009 10:25 AM.

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