This blog presents the fourth of five steps to achieve a defensible process in managing digital information as evidence.  These five steps focus on the truly legal services that lawyers perform – and do not focus on the technical and procedural aspects actually processing filtering, and analyzing information as potential evidence.

Here is a summary of the first three steps:

1.  Identify the rules that govern.

2.  Assemble the resources and tools required.

3. Visualize the work product you will create.

These three steps complete the foundation from which lawyers build their work products.  Admit it, any lawyer do not think of themselves as production resources.  However, nearly every lawyer's essential work product consists of written documents and oral communications that must emerge from carefully designed approaches.  Practicing law is not the same as creating modern art; however, so long as lawyers continue to assert that they cannot be constrained by rules, specific tools, or engineered designs for how they produce their work, they will continue to be assaulted by their clients who are seeking increased control on the costs and outcomes of legal services.

4. Create the work product pursuant to the design.  Executing work product pursuant to an agreed design is much harder than it may seem.  There's no question that, in being a zealous advocate, the creative process  requires the ability to adapt, modify, edit, delete, and enhance a work in progress.  However, when those modifications drag the work product away from the approved design, a lawyer exposes both their client and themselves to increased risk.

Here is where lawyers have rarely been held accountable.  When creating work product that deviates from the design, it is important that lawyers document their awareness of the deviation, as well as their understanding of the implications of the deviation. The documentation may only consist of the internal file notes, but it is important to demonstrate knowing awareness of the deviation.  So often, litigation involving E – discovery has focused upon a review, in hindsight, of the reasonableness of the conduct of the parties and their counsel.  Knowing decisions to "take risks" are often characterized by history as negligence or malfeasance, often leaving the law firm accountable.

In information security management, one of the key building blocks for effective control of security risk is a requirement that any risk, once identified, can only be handled in one of three manners. First, the risk can be controlled through a combination of procedures, technology and resources. The second, the risk can be transferred to a third party, such as a service provider, who takes responsibility for controlling the risk. Third, if neither of the preceding two options are adopted, the risk must be expressly accepted by a responsible executive.

This final option is a compelling component.  The risk must be documented, and if a related adverse event occurs, the consequences must be forecasted.  Only then may the responsible executive be capable of making an informed decision. Of course, when the risk is documented and the consequences are forecasted, many executives opt instead to adopt one of the control strategies.

In creating legal work product, documenting the deviations is similar to documenting the security risks that confront how we manage information. When we act with a knowing awareness that rules identified at the outset of the process will not be satisfied by our work product, and the implications of that deviation are documented, lawyers will proceed with greater care, and will also significantly reduce the likelihood that their work product will be the basis for a challenge regarding the defensibility of the overall results.

The Six Sigma management culture also provides an important metaphor.  An essential element of Six Sigma is that deviations from a prescribed process need to be examined, and appropriate modifications made to eliminate the potential for the deviation to recur.  This focus on "continuous improvement" has rarely appeared in the legal profession.  However, as corporate clients continue to demand increased control, what they are looking for is similar attention to how consistently legal services are performed, and an awareness of how to minimize risk.

Electronic discovery, in its essence, requires a systematic management of digital information.  The legal work product that must be created is represented by many different types of work: correspondence, pleadings, project plans, deposition outlines, collection strategies, preservation notices, process documentation, memoranda, spreadsheets, and workflow plans.  If lawyers consistently implement improved processes for creating their work product, following these four steps, they can eliminate the risk of improper allegations of negligence or malfeasance. 

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Our RitterMaps used in the Academy, some of which are available in the  Academy Store and which we are now preparing to license directly to lawyers and litigation professionals, enable lawyers to better manage how they create legal work products amidst the dynamic chaos of changing legal standards, technologies, and business practices. If you would like to schedule a demo of how the RitterMaps can be used in your practice, we send an e-mail to John.Chamberlain@RitterAcademy.com.