92% of Resolutions Fail, How Will Your 2015 eDiscovery Resolution Stick?
With the conclusion of 2014, the all too familiar song and dance of New Year’s Resolutions is well under way. At the end of 2014, KCura spoke with leading minds in the eDiscovery space about their top Resolutions for 2015 with some interesting results:
Judge Andrew Peck, Magistrate Judge for the Southern District of New York
There are two resolutions I’d like to see lawyers shoot for in 2015: 1) Cooperate more. Cases should be decided on their merits, not based on e-discovery fights. Plus, it will save your clients money. 2) Use Federal Rule of Evidence 502(d) in every case. It’s malpractice to not consider it.
Judge Nora Barry Fischer, District Judge for the Western District of
Pennsylvania
In 2015, I think lawyers should have more meaningful conversations about the issues during the Rule 26 conference. And, I sure do like Judge Peck’s suggestion from our Relativity Fest panel— bring your technology geek to the Rule 26 and the initial conference with the court.
Judge David Waxse, Magistrate Judge for the District of Kansas
My suggested resolution for lawyers would be to make sure they are complying with the new provisions of Model Rule 1.1, which state that a lawyer should provide competent representation to a client and maintain competency by staying in touch with changes in the law and its practice—including the benefits and risks of technology.
Rick Lutkus, Senior Associate at Seyfarth & Shaw LLP
My resolution is to get more actively involved in emerging technologies that complement and integrate with Relativity to more fully leverage the platform for my clients’ benefit.
New Year’s Resolution Success
The good news for everyone reading this is that at one week in, the vast majority of us are still eating healthy, not smoking, working out or taking whatever steps are necessary to theoretically attain our new year’s goals. The bad news is that in as little as another week that number will fall drastically. According to a recent study by University of Scranton. Journal of Clinical Psychology:
Only 8% of people are always successful in achieving their resolutions. 19% achieve their resolutions every other year. 49% have infrequent success. 24% (one in four people) NEVER succeed and have failed on every resolution every year.
Given the abysmal success rate of most New Year’s Resolutions, how can professionals ensure that their 2015 eDiscovery Resolutions don’t also fall by the wayside over the next weeks and months?
Set Clear S.M.A.R.T. Goals
As with personal goals, clarity and specificity is key. Don’t vaguely resolve to reduce eDiscovery spend, cooperate more or leverage technology.
- Specific: Be specific in what your intended outcome is, reduce discovery spend on litigation by 15% or incorporate a technology assisted workflow to prioritize collection, processing or review and reduce time to produce.
- Measurable: Have a method to quantify success and compare current results with previous ones. How much do you want to reduce spend or time, or increase accuracy or cooperation. What type of results are indicative of success in pursuit of your goals?
- Attainable: Don’t set yourself up for failure by setting an impossible target for success. If your current program only uses linear review, concordance and Law, perhaps setting a goal of leveraging Predictive Coding or advanced data analytics in every case is a bit ambitious. If every aspect of eDiscovery is currently outsourced, a goal of 100% internally handling discovery needs is far too broad.
- Relevant: Look at your current program and approach to eDiscovery in litigation, investigations or regulatory compliance and determine what sort of changes will most benefit your practice. If your company or practice rarely handles HSR Second requests, I would suggest not setting a goal that focuses on M&A regulatory scrutiny.
- Time-Bound: Set a timeline to evaluate success or failure on the pursuit of the goals set. If there is not built in timelines for accountability it becomes very easy to keep pushing change into the next month or quarter or year.
Have a Plan Support for Success
Decide how you will deal with the temptation avoid making the necessary changes to your eDiscovery program or practice. This will likely include having an implementation team in place, a timeline for executing various steps and buy in from the top down. Also, do not be afraid to ask for help. Internal experts, vendors, industry experts and trusted advisers all have expertise that can help in educating your team on emerging trends and technology as well as offer first hand insight as to best practices and helpful hints in terms of implementation of changes to an discovery or compliance program.
Provide the resources necessary to best understand the emerging technologies in the eDiscovery space, have providers or internal resources set up Lunch & Learns, tap into the expertise of your internal eDiscovery “Dorks” or reach out to your trusted partners to educate you and the rest of the team on trends in case law, application of new technology, improvements in workflows or best practices generally.
Great resources include: Blogs like Ralph Losey’s eDiscovery Team and the eDisclosure Information project (look under my resources page for a few dozen other great resources), vendor sites that provide white papers, courses in statistics and analytics offered at local colleges (Georgetown and GW both offer interesting applicable courses in the evenings), conferences and groups like Legal Tech and Women in eDiscovery are great resources , as are regional groups, and local providers, most are only too happy to show their solutions off and explain how their tools work.
Don’t Beat Yourself Up and Don’t Give Up:
Remember that minor missteps when reaching your goals are completely normal and OK. The key is consistency. If you stray from your goals, resolve to recover from your mistakes and get back on track.
Cat Casey
Co-Head Global Antitrust & Competition Practice
Solutions Relationship Director, eDiscovery
KPMG
Cat Casey
Vice President, Managed Review
eDiscovery Cat 