E-Discovery Update - by Fios Inc. - Applying Project Management Techniques to Litigation Discovery

Attorneys and consultants often talk about "project management" and "project managers" as if they were universally understood concepts. However, project management principles can be applied in a wide variety of ways, and project management implementation can (and should) vary widely from project to project. In litigation matters, different cases can require very different levels of project management and require different types of project managers.

Project managers serve as the eyes and ears for litigation team leadership, which often only has time to focus on the highest priority projects and problems. By systematically tracking all ongoing projects within a litigation matter, project managers also serve as the unified point of contact for any person-vendor, project leader, or client-who needs to check the status on a specific task. They are the "traffic cops" who monitor the status of all ongoing projects and add or redirect resources as appropriate to keep things moving smoothly.

One consistent tension within project management is the extent to which a project manager must also have subject matter knowledge. One school of thought is that project management serves a purely logistical function; good communication skills and an ability to track complex (and overlapping) projects overcome even a total lack of subject matter knowledge. At the other end of the spectrum, an opposing school of thought holds that deep subject matter expertise is more important than learned management expertise (and fluency in Microsoft Project); accurate status reports are only possible if the project manager can correctly interpret the information he or she receives and place it into appropriate context and priority.

Ideally, of course, a good project manager has both subject matter expertise and the ability to accurately track simultaneous projects. An important part of finding the best possible project manager for a specific task involves finding the best balance of skills. Complex, multi-faceted projects may require more than one project manager, each of which focuses separately on different phases of a project.

Successful project management includes several different elements. First, the designated project manager should understand the specific tasks that will be required to complete a project (or, in the legal context, move case development forward). A task list may be generated directly by the project manager, or it may be provided as part of a strategic planning document created by the legal team leadership. Second, the project manager should understand the resources that will be required to complete the tasks on the list. What is the deadline for completing a document review? What is the skill level of the review team members? What is the average productivity of a typical member of the document review team? The answers to these and other questions enable a project manager to anticipate and identify potential problems quickly so that they can be resolved without derailing the case. Third, a project manager should understand the resources that are available to complete tasks.

"Resources" include not only individuals and companies who are already members of the greater litigation team, but also alternate vendors and additional people who could be brought in on short notice to augment or substitute for existing help. Then, when problems do arise, a project manager can both inform team leadership of the problem, and also present specific ways to resolve a situation.

Applying Project Management to Litigation Fact Discovery

As all litigators can attest, fact discovery is a perennial weak spot in moving a case forward towards resolution. Discovery materials are ordinarily collected from a variety of sources, and it is far too easy to overlook one or more sources until it's too late to make affirmative use of it-or avoid significant negative consequences for not producing it in a timely manner. Similarly, tracking the information and materials that are received in response to discovery requests can be full time (or greater) job, especially now when incomprehensibly large amounts of electronic information (e.g., documents, e-mail messages, databases) are routinely exchanged in many litigation matters. Finally, of course, it's always possible to miss deadlines in an active case with a busy schedule.
Project management is an essential way to keep discovery projects on track. At the start of the litigation matter, most litigation teams draft some form of "big picture" timeline for case development. Ideally, these timelines not only mark off specific projects and deadlines in the case, such as fact discovery and dispositive motions, but also list goals for each phase of litigation. However, since these strategic plans are written by senior members of the litigation team, these checklists rarely include all the details of specific tasks within in major phase of the case. This is where a project manager can add significant value.

Working backwards from the case deadlines and the stated goals of each phase, a project manager works with appropriate members of the litigation team to break these large deadlines into smaller tasks, each with its own set of deadlines. A manager's detailed project plans are always subject to revision as priorities in the case change, but they provide a much more accurate and detailed road map for how to successfully complete a phase of case development than the big picture timeline.

Even the most detailed plan is only a starting point, however. Many times, even the most careful time and cost estimates turn out to be inaccurate because the assumptions on which they are based are incorrect. Estimates of potentially relevant documents may not have included materials from additional potential witnesses. The discovery documents may not have been produced on time, limiting the time available to complete their review. Discovery materials may turn out to include highly technical or foreign language documents that require outside assistance. The ways in which a document review project can add complexity and fall behind schedule are almost endless.

Project management tracks actual progress against the goals and timelines in the detailed case development plan, permitting the legal team to understand whether it should adjust its strategy, staffing, or timelines in light of the way in which the case is developing. Measuring progress against a less detailed general litigation plan often does not reveal delays or complications until they are well established and harder to control. Though it's the project manager's responsibility to identify problems as they come up, assess their impact, and identify ways in which these could be resolved, substantive decisions generally remain the responsibility of lead counsel.

Project managers also hold responsibility for ensuring that a project's many loose ends are properly managed. When litigation team members are fully occupied with their immediate tasks, it's often easy to defer small tasks until they are simply forgotten. While many of these loose ends-a document missing a page, a third party subpoena to which no response is received-may end up irrelevant in the final stages of litigation, there's always a chance that one of these issues could touch on an important aspect of the case. By regularly checking in with litigation team members, a project manager captures these open issues and monitors them until they are completed or genuinely become moot.

Though the same person may sometimes serve in two roles, project management is separate from strategic case management. Project management involves managing tasks within an existing framework of goals and resources, not developing new goals. Some legal teams have found it helpful to bring in an outside project manager who does not have substantive case responsibilities that limit the amount of time the manager can focus on logistics. Other times, because of the need for subject matter expertise, an attorney or paralegal may be asked to serve in this role. Regardless of who fills the role of project manager, however, adding this oversight to virtually any legal team will help it work more efficiently and provide superior service to its client.