The business of eDiscovery is based on workflow. Collected electronically stored information moves through its various conversions on a path to its final destination, whether it’s a database or production volume. This path is the backbone of eDiscovery, and contains the details of what we do every day. But what does an eDiscovery workflow look like? Where does it show up in the practice of litigation? What’s its relationship to managed services?
One of the first pictures of an eDiscovery workflow in the legal industry showed up around 2005 with the launching of the now ubiquitous eDiscovery Reference Model (“EDRM”) (http://www.edrm.net/frameworks-and-standards). This model influenced the litigation discovery landscape in a number of ways. It illustrated the electronic path of data through its technological changes in the eDiscovery process: Collection → Processing → Review → Production. It gave attorneys tools to speak intelligently with judges and counsel at meet and confer conferences about forms of production and other technical planning aspects of discovery. It also provided a common language for attorneys and service providers to communicate about production obligations and other service requests (including pricing). Then, following the 2008 financial crisis, when firm clients began to demand that outside counsel work more efficiently, firms often used the EDRM model as a template for preparing cost estimates, plans and budgets for the associated phases in litigation.
Such was the paradigm at MoFo, and for many years the EDRM model guided our relationships with counsel, judges, service providers and how we worked with each other. We used it to create a new eDiscovery Resource Management department that started with a few practice support people and grew to a full team of project managers and analysts. We used it to engage our preferred service providers in master services agreements that allowed for common pricing among matters and repeatable workflows and templates. And we used the model to build out a project management framework in litigation with the attorneys in our own eDiscovery Task Force applying the principles of the PMI. Within a few years, the building blocks were in place to create an efficient litigation technology engine. A refined picture of eDiscovery protocols began to emerge. So when eDiscovery managed services models were introduced, we were listening.
It’s been nearly four years since our firm began investigating options to make our eDiscovery delivery more efficient. After painstaking exploration of several alternative solutions (some of which even advanced to the pilot phases), we enthusiastically embraced eDiscovery managed services as the best choice for our clients and our firm. In fact, the workflows we had documented of our internal processes during our investigation became an instrumental aspect of how we evaluated the various forms of our new subscription-based model. They reminded us of our business requirements, the work that needed to get done every day and helped us get a handle on all the moving pieces.
One of the workflow exercises that proved useful was to write out the steps that should be taken for a specific phase on a single hypothetical case and compare them to the essential (critical path) steps taken on a case that was part of a larger, systematized set of, say, 100 cases. Taking the time to document and evaluate workflows helped us to see the value in looking at 100 cases doing the same thing as opposed to just one case (then the next, then the next, etc.). This exercise convinced us that it would meet our needs for standardization and consistency, security and ease of use.
When we were ready to solicit bids from eDiscovery managed services providers, we prepared and delivered a set of formal RFPs. While drafting our questions, we simultaneously prepared our own answers that were in line with our business requirements. Many of the questions addressed explicit needs to evaluate how well each candidate could match the eDiscovery workflow that we were familiar with, to our needs. For instance:
- RFP Question: What is your approach to a managed services offering?
- Answer we looked for: We can provide you efficient, standardized, consultative workflows to account for all phases of the EDRM model including data transfer, processing, review, and storage management protocol.
- RFP Question: How can the managed services environment scale to our needs?
- Answer we looked for: Here are the options for scaling either up or down around our needs for processing power, technology, security and project management oversight in our environment.
Spending time with our workflows ahead of preparing the RFPs helped us to prepare targeted questions to get meaningful responses. In some cases, the responses themselves revealed whether the service provider “got it” in terms of how we as the potential client would conduct our day to day business.
After selecting Epiq as our managed services partner, our internal documented workflows also helped us to negotiate the terms of our managed services contract in three key areas:
1) To define the SCOPE of our managed services environment (space, processing throughput, user licenses, project management hours);
2) To create scenarios for appropriate PRICING;
3) To create detailed workflow guidelines outlining the appropriate SERVICE LEVELS (a collaborative effort with Epiq, this document included roles & responsibilities, steps of the EDRM workflow phases, templates, reporting, and issues handling).
The workflows that originated from the EDRM, then refined in the legal industry and in our firm, were influential in helping us to achieve our goals for an eDiscovery delivery solution that included standardized and repeatable processes, aggregated reporting across eDiscovery matters, dedicated infrastructure technical support, and a predictable monthly subscription.
Next time, I’ll dive into what happens when there are glitches in the execution of the workflows. Of course, errors should be expected, especially at the beginning of a new relationship involving hundreds of cases. But having a plan for responding to what happens when there are unmet expectations is crucial to the success of the provider/firm relationship, to fixing what’s wrong and to improving the processes overall.
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