Using Legal Project Management to Extend an E-discovery Practice Group to a Firm-wide Competency

The American Lawyer recently published an interesting article about the increasing number of law firms that are creating e-discovery counsel positions and setting up e-discovery practice groups and task forces.^[1] There are a variety of models described, but what they all seem to share in common is that there are one or more attorneys and staff who focus full or part time on e-discovery issues, which act as a go-to resource for the rest of the firm and its clients. The problem with this approach is pointed out by the always-astute George Socha:

[J]ust having an e-discovery practice group doesn't mean that the entire firm has a grasp on e-discovery. 'The general goal for firms is to have a standardized approach to handling e-discovery," says Socha. 'They don't just need a practice group, they need every lawyer practicing e-discovery.'"

E-discovery should be a core competency for any attorney--it is just legal discovery for the modern world. If you want to practice law in the information age, you need to understand the basics of identifying, preserving, collecting, analyzing, and presenting electronic evidence. While it makes sense to have a practice group or resident expert to help set firm-wide policies and practices, and to act as a resource for particularly complex discovery matters, this resource should not serve to replace the responsibility of individual attorneys. This is analogous to firms with privilege experts or teams, who are charged with keeping on top of new developments in privilege law, understanding the most arcane applications of that law, and developing and promulgating best practices for protecting privilege at the firm. The existence of such a position does not, however, mean that other members of the firm can delegate away their professional duty to understand and protect client confidences.

Yet too many attorneys see e-discovery as "tech stuff" to delegate to the firm's resident geek lawyer. This is an increasingly dangerous attitude. Some level of understanding is required to even know when you need help from the e-discovery practice group and what questions to ask. Therefore, the primary role of an "e-discovery" practice group should be to design, promulgate, and monitor compliance with firm-wide e-discovery standards. E-discovery counsel should be "legal knowledge workers" in the sense that futurist Richard Susskind uses the term: "people who create, monitor, and progressively elaborate on the standardized processes and documents."^[2]

This is where legal-project-management and process-improvement capabilities are important. The occasional CLE course and firm-wide memo are not enough. Firms who have project-management systems in place are in a better position to bake e-discovery best practices into the management of their legal matters. This is also an example, I think, of where it makes more sense to focus on project management before process improvement. 

Even though e-discovery processes are especially suited for process-improvement efforts, a firm first needs to ensure that its attorneys know they need to make the effort to determine what e-discovery tasks are required. Attorneys need to include e-discovery considerations into their planning activities for (nearly) every litigation matter. Project management systems used by attorneys trained in legal-project management will greatly facilitate the promulgation and enforcement of firm-wide e-discovery standards.