Mergers, restructures, separations, Intellectual Property (IP) issues, and all data-heavy business processes can be better supported by technology, primarily when powered by collaboration. When professionals are approaching legal problems together, problems get solved far better than through a legal lens in isolation.
Discovery as a litigation support service has been around for a long time, it may seem that everyone collaborates on discovery processes as a matter of course. However, this is not the case.
BDO’s Forensic Services team share some of the lessons learned in terms of collaboration in Discovery and why it can be more challenging than it sounds.
The need for collaboration arises pretty early on in the process. Precisely, when a regulatory or legal notice or request for Discovery is made by an organisation. For simplicity, this is referred to as a request.
When a request is received, the recipient can feel the need for a ‘magic button’ since these requests can be broadly worded, and timeframes are usually tight. If only it were that simple and there was a magic button. Stakeholders often assume there is one, but there isn’t. Therefore, collaboration from the outset is critical and can be seen as the intangible ‘magic button’ to deal with troublesome requests for Discovery.
Is this what a DISCovery project feels like?
Where the DISC for disconnected replaces the CO of collaboration… you guessed it, right?
To prevent this from happening, collaboration on the request is the very first step. All sides and stakeholders need to listen first to avoid the ‘face value’ problem identified by the party providing discovery instructions. Too often, instructions are thought up in isolation and from one viewpoint. Value is missed, reputation lost, and cost savings are not realised if instructions are taken at face value.
Our experts have witnessed thousands of documents reviewed by regulators for irrelevant or poorly defined search parameters and productions that weren’t compliant with expectations. Data sources missed altogether or massive over-collections are also expected outcomes of poorly calibrated requests.
In this circumstance, it pays off for the recipient of the request to connect with internal or external parties such as Legal Counsel, the organisation’s information technology (IT) or compliance team, a good project manager, internal or external Discovery professionals, and others relevant to the request. Instead of viewing this step and increasing costs, it should be seen in its true light as a potential efficiency and cost-saving action.
In conjunction with the need to keep knowledge of the request to a strict ‘as needs’ basis, all this makes this a challenging balance, and there is a definite art to getting it right. It will take some time but will be worth it to set the Discovery project up for success.
Once the request is understood and all parties have gathered relevant questions, the recipient can reach back out to the sender, confirm the request, ask any further questions and apply for extensions as necessary and appropriate. Provided this first discussion was thorough, everything else should flow a lot easier from there.
The ‘body’ of response – Three best practices for collaboration
During the course of the Discovery project, there are a few key success factors that BDO’s Forensic Services team emphasise. In our experience, processes will go wrong if any of the following occurs, including:
- Communication of the project team is solely, or primarily, via email, instant message, or through dysfunctional 100-people conference calls
- Trust between people on the project team is too little, or too much
- Language barriers as people on the project team don’t speak the same language, and nothing is done to manage the associated information asymmetry.
Best practice one: Communication modalities
Regarding mode of communication, any experienced project manager will know this, however, getting the cadence and communication right is a key success factor. A quick email or instant message can be easy. Still, words have been demonstrated to make up only 7% of interpersonal communication overall, and therefore if all communications are written, a lot will be missed.
A successful Discovery project will allow key individuals to connect face-to-face, via phone or video-link, while decision-making processes are efficiently streamlined and recorded. This helps with establishing accountability and transparency and as a source of reference for those key individuals.
Best practice two: The ‘Goldilocks’ amount of trust
In building trust, there is a balance to establish. Too little of it and the second-guessing will lead to double workloads and delays. Too much of it will mean the right questions aren’t asked of key individuals, and confirmation bias might prove to be a costly practice.
During a well-structured Discovery project, there should be enough trust to enable key individuals to do their jobs with adequate levels of independence and without being constrained by bureaucracy. Yet, the relevant questions should be asked, and process and output should be reviewed at an appropriate level to challenge the results before production.
Best practice three: Mind your language
Having worked on numerous large projects, our experts often translate bits and bytes into debits and credits. With experience as the ‘human interface’ between the different stakeholders on large projects, BDO’s Forensic Services team often find there is a mixture of ‘techies,’ government/regulatory, compliance, and commercial/legal stakeholders.
The team found a pattern in the organisation’s operations. If they lacked success on projects, it was due to ineffective communication between these stakeholders. Stakeholders assumed they understood each other, but in reality, they didn’t, resulting in frustration. This, in the context of a Discovery project, is occupational information asymmetry at its finest.
More often than not, there appears to be a correlation between the communication requirements on the one side, the size of the project, and the number of stakeholders involved. Not every project is of the complexity or size, however human interface is required every time. However, involvement in a meeting here or there, like at the scoping at the start and output review at the end, can make a world of difference to project success of any size or degree of complexity.
Suppose no one with the explicit role of moderating the information asymmetries is involved in the Discovery project. In that case, everyone needs to ‘mind the gap’: i.e. call each other out on jargon, occupational assumptions, and biases. No one should feel afraid to ask a question.
- Limiting email and other text-only communications channels to where they are effective - Be mindful of when they are not effective.
- Establish justified trust levels – Not too much and not too little.
- Work on speaking each other’s language - Make sure the messages between stakeholders with different backgrounds are fully understood, and assumptions, jargon, and biases are mitigated appropriately to achieve an optimal outcome.
A final note on critical success factors in Discovery collaboration, which is particularly relevant for the third lesson outlined above, is to be cognisant of how Discovery familiarity differs between advanced users and others in terms of the process.
It might be helpful to think of the three best practices and how to apply them on a scale. In some relatively inexperienced teams, the default position should be investing heavily in all three of these practices. Very process-experienced teams, on the other hand, especially if they have successfully collaborated before, might only need a light-touch approach.
Final thoughts and looking ahead
One final thought on collaboration is that legal professionals often pigeonhole processes and technology, limiting collaboration. They sometimes only think of a tool for their specific area of expertise or in terms of a limited capacity where they’ve seen it used before. This limits opportunity. Our experts firmly believe that we can achieve almost anything together and approached together.
Legal technology nowadays is a much bigger industry than just Discovery. And many Discovery tools are capable of so much more than they were back in the early naughties.
So, where is this all heading? Into the cloud, you might say. Whatever that may mean.
Let’s talk about the cloud in a technical sense. What does collaboration look like when all data is stored in the cloud?
An obvious prediction is that it will limit time and cost relative to data volume, which is good as data volumes are ever-growing, and change the approach to collections entirely. Already, BDO’s Forensic Services professionals find themselves involved in many 'remote collection’ scenarios.
Cloud will likely also mean convergence to the infrastructure of a few large providers. Will that make Discovery any easier? The answer depends on your view of the world, most likely.
- It could be yes – From the standpoint of where the data is held/sovereignty and more uniformity in format.
- And it could be no – From roles and responsibilities, accessibility and retention standpoint, there will be a lot to nut out over the coming decade.
Another question that tends to come up is, will Discovery be a process hosted inside organisations entirely due to software vendor convergence?
It could, however, specific scenarios will likely still require independent review and handling, due to conflicts of interest, for example, or in specific legal scenarios, possibly coupled with the requirement to execute on Discovery processes in a designated, secure, physically separated environment. Particularly when processing is required at scale.
And regardless, there will always be a need to employ technical specialists that know how to work with Discovery tools, as well as ‘interpreters.’
If you have any questions regarding best practices for eDiscovery, contact BDO’s Forensic Services experts.