How can eDiscovery be better?

This critical question has occupied the vast majority of the Baker Donelson eDiscovery Team’s time and attention for many years.

EDiscovery requires the careful coordination of the substantive law firm, the client’s Information Technology (IT) resources, and the necessary outside service providers that provide technology and staffing support. To make eDiscovery “better” requires the close coordination of these participants, much the same as a construction project requires careful planning and excellent execution.

But, “better” is harder to define. It is a loaded and subjective word.

First, who defines “better”? Is it the trial team finding the case merits faster? Is it the client IT being protected from unnecessary complications? Is it the in-house counsel saving budget dollars for the merits of the case?

Second, how do you measure “better”? Is it strictly lower cost of the production, even if that means more dollars spent on motion practice? Is it lower review dollars, even if the technical costs are enlarged?

Third, when do you measure “better”? Is it when the production is made? Or, after depositions?

The “who,” “how,” and “when” questions of making eDiscovery “better” are critical questions. They should be top of mind for everyone responsible for an eDiscovery budget and the outcomes.

As we have worked (and re-worked) solutions to this critical question, one of the seminal moments in my personal legal and managerial development with eDiscovery was reading “The Toyota Way” by Jeffrey K. Liker, published by McGraw-Hill.

What? What does that have to do with eDiscovery? Everything. Bear with me.

The Toyota Way chronicles how Toyota transformed manufacturing of automobiles. After World War II, Toyota had to improve manufacturing techniques just to survive. And, it more than survived – it thrived by creating a whole new way of manufacturing cars that transformed quality expectations and maximized efficiencies.

The first time I read it, I realized how strongly eDiscovery resembles manufacturing, and how tried and true manufacturing improvement techniques could revolutionize how we “do” eDiscovery. Naturally, given its setting, eDiscovery also benefits from great lawyering. Real improvement balances both manufacturing improvement and effective, smart lawyering. This blog series – for the foreseeable future – will focus on these principals with much more specificity.

Let me start with a teaser. Before the reader even starts on the text, the inside cover of Liker’s book says: “Fewer man-hours, less inventory, the highest quality cars with the fewest defects of any competing manufacturer . . . .”

Applied to eDiscovery, this is translatable into a simple eDiscovery goal:

“Fewer billable hours, less documents, the most-defensible productions with the fewest not found or errantly produced documents of any competing manufacturer, AND delivery of more substantive information to the legal team.”

Let’s break this statement down.

• “Fewer billable hours.” Toyota’s main cost is man-hours. EDiscovery’s main cost is billable attorney and project management hours. Both are necessary to the end product, but minimizing them is critical to the ultimate project cost.
• “Less documents.” Toyota’s cost is inventory. The more parts that are not timely integrated into the final product, the more cost. EDiscovery’s “inventory” is documents – those documents that must be collected, processed or reviewed to be produced. The less documents, for the least amount of time in the queue, the lower the cost.
• “The most-defensible productions.” The “highest quality cars” are measured by their longevity and overall cost of service. In eDiscovery, the highest quality productions are measured by their defensibility. This includes minimizing expensive and distracting motion practice.
• “With the fewest not found or errantly produced documents.” Defects in cars affect their reliability and safety. Defects in document productions usually surround the failure to find responsive (and important) documents, or the production of privileged or not responsive documents.
• “Of any competing manufacturer.” This is the various law firms seeking to act as the producer of the documents in the case.
• “Delivery of more substantive information to the legal team.” We should expect more, and “more” from eDiscovery is more substantive intelligence about the case and the merits. A stronger case narrative, born of the data, is a key component to success.

In the coming months, this blog is going to dive deeply into how to achieve results. Lean manufacturing improvements do not happen overnight. They are the result of a mindset of continuous improvement and commitment. We invite you to join us on the journey over the coming months. In the next blog, we will talk more about the goals of Lean manufacturing, and how they apply to eDiscovery.