Four Tips for Managing Multiple Matters in the Age of the Pandemic
Written by Doug Austin, Editor of eDiscovery Today
Unless you’ve been living under a rock, you’ve probably heard that we’re seeing more litigation as a result of the pandemic and the resulting economic crisis – in some cases, a lot more. According to the law firm Fisher Phillips (reported here), of the 283 COVID-19 workplace suits filed in federal and state courts through June 30, 122 or 43% were filed in June, marking a 30% increase from the 94 cases filed in May and 103% from the 60 in April. Class action lawsuits are also rising, with 41 filed against employers since the pandemic began. And, that’s just one area of litigation.
One notably growing web conference company has had no less than five class action suits filed against – all this year. Even the New York Times is reporting expected growth in lawsuits. Not to mention, growth in investments into lawsuits, but that’s a story for another day (actually that day was June 29 when I wrote about it then). Anyway, it’s more likely than ever that your organization has multiple litigation matters to manage. With that in mind, here are four tips for managing multiple matters during the pandemic:
Get Your IG House in Order: If you’ve been reading my IPRO column the past six weeks, I’ve discussed the needs, responsibilities and recommendations for each of the five stakeholder groups of the Information Governance Reference Model (IGRM), so whether you’re Legal, Records and information management (RIM) , Information Technology (IT), Privacy & Security or Business stakeholders, you need to do what you can to help the organization address its information governance challenges. That includes data mapping and addressing the “5 W’s” of organization data maps to understand where you’re data is located.
Employ Technology Earlier in the EDRM Life Cycle: Litigation is growing. Budgets are not, as evidenced by the most recent eDiscovery Business Confidence Survey published by Rob Robinson’s Complex Discovery site, where Budget Constraints were voted on by nearly half of the respondents as the most impactful factor over the next six months (almost as much as the other five factors combined).
As a result, you need to leverage technology as much as possible to support the growing litigation burden within budgets that are manageable. Once you have an up-to-date data map that gives you a sense of the amount of potentially discoverable data you have within your organization, consider “index-in-place” technologies that enable you to quickly identify potentially responsive data and collect that data for processing, review and (eventually) production and presentation. Traditionally, data has moved to the technology, but it’s becoming more and more necessary for technology to move to the data – where it lives – to identify potentially responsive electronically stored information (ESI) earlier and only move that ESI forward. The days of collecting the entire corpus for potentially responsive custodians is coming to an end.
Don’t Forget Non-Traditional Sources of Data: Do your workflows still focus primarily on email and Office files? More business communications than ever are taking place via text and also messaging and collaboration apps like Slack and Microsoft Teams (here’s a link to our upcoming webinar where we’ll discuss those and how to address them). Not only that, because of all of the additional remote meetings being conducted now, there are so many more audio and video files that are discoverable (here’s a post from Jim Gill on that topic and a link to a webinar and podcast where I’ve discussed it as well). Failing to focus on these non-traditional sources of data can put you behind before the matter barely gets started and even more behind if you’re managing multiple matters.
Stop the Insanity: You know the famous phrase “Insanity is doing the same thing over and over again, hoping for a different result”*? Well, in document review, insanity is doing the same thing over and over again and getting a different result. By that I mean, reviewing the same documents in multiple matters, but not categorizing them consistently. I’ve seen matters were counsel failed to mark documents as privileged that had been marked as privileged in other matters; hence, losing the privilege classification in the current matter (and maybe beyond). Taking a centralized approach to managing multiple matters, where an organization makes use of previous document classifications not only ensures consistency of document classification, but also saves outside counsel firm costs and having to review those documents again and again. The multiple matters your organization is facing may be in different jurisdictions managed by different local outside counsel firms that best know the local and state rules and judges’ tendencies – as a result, you want each local outside counsel firm that is familiar with the jurisdiction to be able to take advantage of document classifications previously recorded instead of “re-inventing the wheel”. Getting more consistent document review at a lower overall cost? That’s not insanity, that’s smart!
*By the way, the “Insanity” quote has been widely attributed over the years to Albert Einstein, but he apparently never actually said it. So, you learned something else from this post! That’s crazy!
For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between IPRO and eDiscovery Today, he’ll be here in the IPRO Newsroom next week with more educational content!