Principle 5 - Cooperation and Communication

DRAFT – UNDER DEVELOPMENT – PLEASE COMMENT

The Principle

Service Providers should be mindful that the best interest of the client dictates that each participant in the EDD process fully cooperate with one another in order to produce a quality deliverable in a timely manner. Best practices for assuring cooperation requires all participants to communicate proactively, openly, and transparently as possible with each other. Communication can best be facilitated by having a project lead appointed by all parties actively participating in the process.

The Corollary

Best practices necessitate the exchange of relevant information by and between all participants in the process. Clients should cooperate with their Service Providers, and communicate all necessary information required to allow the Service Provider to timely and accurately perform their contracted work on the project. Clients must continue to provide relevant information to their Service Providers throughout the entire engagement.

Guidelines

1. At the beginning of a matter:

   
   

   1. Service Providers should identify project managers who will be responsible for establishing a scope of work, costs, and clear channels of communication.

      
      

      1. Project Managers should schedule initial meetings and provide example reports with sample metrics and discuss internal deadlines and process requirements.

      
      

   2. Clients supervising a vendor(s) should appoint a Single Point of Contact (“SPOC” or Project Coordinator) within the client team to communicate with the project manager and manage any necessary communication by other members of the litigation team or Service Provider employees.

   
   

   3. Clients should make every effort to communicate deadlines as soon as the information becomes available to all members of their own litigation team and Service Providers.

   
   

   4. Service Provider’s project managers should clearly identify the role of their company, the specifications of their deliverable, and the expectations of the timing required to hand off their work product to the next Service Provider or client.

   
   

   5. Clients should make specifications available to their Service Providers, as early as possible, including: deduplication method, client-hosted database load file format, form of production and initial search terms.

   
   

   6. Clients should outline expectations for communication between multiple Service Providers if they exist and ask the various PMs to designate single points of contact at each vendor.

   
   

   7. A single Project Coordinator should be appointed to:

      
      

      1. Insure the smooth exchange if information and work product between the Service Providers.

      
      

      2. Resolve any problems between Service Providers.

      
      

2. During the matter:




1. Service Providers should report to clients and the Project Coordinator on a predetermined schedule to avoid ambiguity.




2. Service Providers should alert the client and the Project Coordinator to any problems or potential problems as soon as possible and not wait for the client to inquire about deadlines or quality issues.

   
   

   1. The Service Provider should be ready to describe suggested remedies, costs, and the time frame for ameliorating the problem.

   
   

   2. Service Providers should report any issues with another provider’s deliverables to the client and the Project Coordinator as well as the other Service Provider.

   
   




3. Service Providers should answer any and all client and the Project Coordinator questions or concerns in a timely manner.




4. Clients need to report any errors located in a deliverable as soon as possible to the provider, the Project Coordinator, and to any other Service Provider working with the deliverable.




5. Clients should communicate with all related Service Providers and the Project Coordinator about changes to scope, deadlines, or formats as soon as is practical.

   
   

   1. Service Providers should respond to any changes with revised information about cost and any issues related to deadline or format modifications.

   
   




6. Clients should make sure all necessary information is shared within the litigation team and communicated to the Service Providers, ideally through the SPOC (Project Coordinator).




7. Service Providers should communicate with each other honestly and frequently in order to avoid knowledge gaps leading to errors or missed deadlines.




8. The relationship between client and Service Provider should be one of mutual respect.

   
   

   1. Service Vendors should provide guidance about services and products only to the benefit of the client and not solely for business development.

   
   

   2. Clients should enter into communication with Service Providers in a collegial frame of mind, respecting the provider representative’s experience and dedication to the disciplines evolving around electronic evidence management.

   
   




3. At the close of the matter:




1. Service Providers should be ready to discuss the final disposition of any outstanding deliverables, charges, or original data/media.




2. Clients should be prepared to direct their various Service Providers as to on-going storage, outstanding work, and the return of data/media.

Discussion

Complex ESI management requires the formation of an organized team of players dedicated to a common objective. Litigants and law firms frequently engage multiple Service Providers to manage the different phases or tasks associated with the electronic discovery lifecycle. When there are multiple Service Providers engaged for a single matter, it can be difficult to get everyone to work together in an efficient and effective manner. Problems particularly can arise in managing the effective transfer of deliverables between organizations. Accordingly, an overall project lead should be appointed to supervise the coordination of all active participants and insure the smooth flow of information and materials throughout the project. Furthermore, each active participant should designate a project coordinator to be the primary point of contact with the project lead. If possible, the assigned project lead and coordinators should remain with the project from inception to completion of their organization’s participation in the project.

There is an obligation of Service Providers to cooperate throughout the project. Service Providers are part of a larger workflow on a project, and must have standard processes in place to facilitate the transfer of information and materials to and from other Service Providers, as well as litigants and law firms. To the extent that proprietary processes may be exposed during the transfer of information and materials, it is the obligation of the Service Provider to isolate those processes without negatively affecting the project.

Litigants and Law firms should effectively share information with their Service Providers that may impact their performance on the project, including early communication of project parameters, anticipated deadlines and deliverables.

Examples

1. Example – Best Practice 1.A-C: A Client engages a Service Provider to process ESI. The PM sends the SOW and contact information of all company participants to the client and schedules a kick-off conference call. During the call, all participants introduce themselves and the client litigation team informs the vendor who Project Coordinator will be and the point(s) of contact for the project or project phases. The client shares any helpful documents which are available such as the complaint and communicates any existing deadlines. The client also confirms the Project Coordinator will disseminate of all of the information to be performed across custodians. The Project Coordinator sends a list of the custodian priority rating.

   The Project Coordinator explains procedures related to processing, reporting, and exception management. He sends example reports and confirms the reporting schedule.




2. Example – Best Practice 1.E&F: A Client engages three Service Providers to alternately collect, process, and host ESI for review. The client hosts conference calls regularly on which a representative from each vendor participates and shares metrics and data specifications with all members of the group. Progress or slowdowns are immediately reported and any changes to deadlines or scope. Chain of custody is easily maintained and documented through each stage of the process and as data is transferred to each new vendor’s system.




3. Example – Best Practice 1.B.2: A processing vendor receives a set of CDs from a collection vendor under a cover letter with the name of a current client and project. Upon further inspection, it appears that the CDs are from a different collection project, and not one from the processing vendor’s current project list or even client list. The processor alerts the client from the current project, and the collection vendor, without divulging any information from the CDs and returns the CDs to the collection vendor. The collection vendor informs the other law firm, who was the original source of the data, of potential disclosure.




4. Example – Best Practice 2.D: A client receives processed data for their in-house review system. There is a delay in loading the data because of a hiatus in discovery. When discovery reopens twelve-months later, the client decides to out-source the review and sends the data to another vendor for hosting. The hosting vendor realizes the parent attachment information has not been retained in the data set and informs the client of the error. The client asks the processing vendor to solve the problem but encounters difficulty due to the delay in finding the error.




5. Example – Best Practice 2.H: An ESI consultant is retained by a law firm to assist with preparations for the meet and confer and with processing. The consultant and litigation team meet on several occasions to discuss their options. Unfortunately, the senior litigation team partner is not particularly skilled in the vagaries of ediscovery and has trouble participating in discussions. This partner covers his lack of understanding with condescending bluster and refuses to benefit from the consultant’s expertise and experience. Against the consultant’s advice, the partner agrees with opposing counsel to an overly broad collection strategy and allows the client IT representative to self-collect.