Why E-Discovery is Like Construction
10-10-2012, Avansic - Corporate
Don't Be Your Own GC: Why E-Discovery is Like Construction
Executive Summary

E-discovery is like construction: projects are not on schedule, frequently over budget, clients are rarely happy during the process, and everyone breathes a sigh of relief when everything is finally over.

When building or remodeling, clients have an idea of what they want and how much they have to spend. Then, an architect creates the blueprints and a contractor is hired to use those plans to build. The contractor engages subcontractors to do the various pieces. The construction begins with site selection and moves through various phases such as foundation, framing, electric, plumbing, and finishes with interior finishing, fixtures, and so on.

So, how much of that construction would you want to do yourself? It depends on your confidence in your skills as a builder, carpenter, electrician or plumber (and your available time). So, if e-discovery is like construction, why would anybody within the process assume they could do it all? E-discovery needs clients, attorneys, general counsel, IT personnel, experts, and litigation support (internal or external) and all of their associated tools.

It's important to choose your role – do you want to be the customer? Do you want to be your own general contractor and direct every piece of the project? Being somewhere in between is most often the best solution.

Analogy
Where do you begin? Start by choosing your role and scoping your project the way you start construction: with a blueprint. Thanks to the EDRM, that blueprint has already been developed - but, just like construction, that blueprint needs to be modified to fit the project which may be changed as the project progresses. These changes make it imperative to have a project management plan and a budget. For instance, if your plan includes a basement but you're building in Texas, it may not be affordable to due to limestone in the area so the blueprint will have to be adjusted.

Stages of e-discovery and the EDRM can be matched with phases of construction. For instance, identification represents site selection. Preservation is similar to choosing materials and pouring the foundation for the remainder of the project.

Processing creates the building's frame, electrical, plumbing roof, and other core features. This plumbing and electrical work is critically important to house functions but it's ugly, complicated, time-consuming, and doesn't make a lot of sense to the layperson. All those computer processes (the wires and pipes) are then covered with pretty Bates-stamped TIFF images (the sheetrock) and painted and decorated with whatever extra endorsements or special handling is needed for that particular attorney.

Just looking at the TIFF files (the finished walls), nothing looks amiss and everyone trusts that it has been done correctly. But if you look inside the walls, there might be shortcuts taken with the plumbing and wiring, with slow leaks and pipes that aren't fitted quite right. It may not be until weeks or months later that water leaks show through the walls. Or worse – a live wire left inside a wall burns the entire house down.

Production is the finishing work, such as sheetrock, trim, paint, and fixtures. Review is initially done by the inspectors for quality control but the real review/inspection work is done by the homeowners once they live in the house for a few months. Each part of the process is key - if you choose a site with no knowledge or expertise, you might end up on a floodplain, and all the finishing work in the world won't fix it.

General Contractors
In construction, as in e-discovery, success hinges on hiring people that know what they're doing. Good project management in e-discovery is rarely practiced but it can make the difference between a house that survives a windstorm and one that loses a roof. Often, the best decision an attorney can make is to hand control of an e-discovery project to a “general contractor” with significant experience. This is particularly true for attorneys who are new to e-discovery or want to focus on the legal aspects of the case rather than the nitty-gritty of e-discovery technology.

Choice of subcontractors can be a sticky issue – do you trust your GC to use the people they know? Are you sure you're getting the right bid and right combination of skills, rather than someone's cousin? Depending on the situation, attorneys may need to ensure that bids are being handled properly.

Knowing that certain subcontractors have a sweet spot is important too – you might not use the same plumber for a 10,000 square foot house as for building an outdoor pond. The same is true of e-discovery vendors - some excel at collection, some are highly efficient at processing, and some do their best work when assisting clients with document review.

Change Orders
All of us have been there – deep in a project, on a defined path, and then something changes. It happens when building houses and it happens in e-discovery; new search terms or custodians come in, just like having a blueprint that's been approved by the city and then a sinkhole opens underneath the basement. In both cases, the price and timeline will change, since moving a sink affects the internal plumbing and wiring just as much as changing an approach to processing.

Fee Structure
Pricing in construction is fairly straightforward (although those budgets suffer from unexpected increases just as much as e-discovery). Some e-discovery providers and construction contractors work with fixed fees and in those cases, they are applying a number of assumptions in order to arrive at that bid. Naturally, if the assumptions aren't accurate or one of the aforementioned changes occurs, that fee may no longer apply.

There's a good lesson to be learned about price expectation from the construction industry: don't expect to get a $1,000,000 house for $75,000. If you do, you can be sure that there are major problems hiding behind those walls.

Conclusion
All humorous analogies aside, the ultimate question is twofold: are you the best person to manage the building of this house? And are you as good at plumbing as someone who you could hire? Like construction, e-discovery mistakes or shortcuts in processing won't show up until later. If you're lucky, you'll catch them during quality control or early in review. Remember that e-discovery is a team effort and having the right skills in the right place will prevent house fires.