What is an eDiscovery steering committee and how do you form one?
An eDiscovery steering committee is a game-changer that’s relatively easy to implement, and that can reap significant rewards for your organization down the road. Whether you operate as part of a corporation or as a law firm advising clients, establishing an eDiscovery steering committee will make your eDiscovery processes more seamless, less disruptive, and less chaotic. It’s no coincidence that all these benefits directly impact costs, so ensuring that your organization has a steering committee to create and oversee a standardized and repeatable approach to eDiscovery is a great place to start saving your organization money.
What is an eDiscovery steering committee?
An eDiscovery steering committee, often called a Legal Event Team, is a specialized group responsible for developing and maintaining the policies, procedures, and documentation for responding to an organization’s legal events. This team decides how the organization will handle legal events—from preservation and legal holds to data collection, processing, document review and production, and all other facets of the eDiscovery process.
What does an eDiscovery steering committee do?
The eDiscovery steering committee puts together a loose framework of workflows used inside the organization or for their law firms to follow when advising their clients. The group creates repeatable, reliable processes that won’t require reinventing the wheel each time a new legal event arises. The committee assigns roles and responsibilities in advance so that whenever a new legal event occurs, it’s clear who will do what and when.
Ultimately, the committee’s biggest task will be to create an internal written plan that scales to the organization’s needs in the form of an eDiscovery playbook. This task can be as basic as walking through the Electronic Discovery Reference Model (EDRM) steps and deciding what needs to be done for each step and who will do it. Depending on the organization’s needs and complexity, the eDiscovery playbook can evolve from a basic guideline to a very detailed guide encompassing all things eDiscovery.
What happens when you don’t have an eDiscovery steering committee?
Without an eDiscovery steering committee, you have no plan or preparation or plan, and your eDiscovery efforts will likely be wildly chaotic, disruptive, and wastefully expensive. In the absence of this written plan, an organization must rely solely on institutional knowledge. Even if your organization has a deep bench of experts full of high-level institutional knowledge, without a clear and consistent game plan, you will have no continuity from case to case. Not only will unnecessary disruptions continue to plague your organization, but a lack of plan can impact defensibility as well.
You also run the risk of losing valuable institutional knowledge when someone leaves your organization. (What happens when that one paralegal who singlehandedly managed legal holds for years decides to take another job?) When a legal event arises, having a written plan in place gives the responsible parties what they need to know about where to go and how to get started. In addition, a documented plan enables you to onboard internal and external people into your process and is immensely helpful when key individuals are unavailable due to sickness, vacation, or other scenarios.
How to Form the eDiscovery Steering Committee
When it comes to establishing an eDiscovery steering committee, the request needs to come from the top. If you are not at the top yourself, it’s time to speak with those who are. You will need executive sponsorship to help get buy-in from the various heads of state, so your first step may be selling the idea to your executive sponsor.
First consider your scale and available resources to determine:
- Are you a smaller organization with small litigation profiles and even smaller resources? Consider hiring an individual outside consultant to help you get started.
- Are you a larger organization with a large litigation profile? Seek out experts that match your level of scale.
How to Get Support for an eDiscovery Steering Committee
Help your executive sponsor and other executives understand the impact that the eDiscovery steering committee will have on those involved and its benefits to the organization. It’s no secret that having a plan provides a pathway to success—executives in any industry understand that concept. Lay out the ways in which the eDiscovery steering committee will bring improved efficiencies, effectiveness, defensibility, and reduced costs to the organization. Loop in each member of your proposed eDiscovery steering committee and have them highlight past chaotic experiences they’ve endured where no plan existed. Ask them to outline the distinct advantages that a playbook would bring to their processes and integrations across the organization.
The Committee Members, Their Roles, and Their Responsibilities
When assembling an eDiscovery steering committee, you should include those individuals who would typically be involved in the eDiscovery process; otherwise, you run the risk of having a plan that is less than comprehensive. This shortcoming can put your committee in a position to miss or incidentally recreate existing processes, thereby introducing inefficiencies from the start. You can avoid this by casting a wide net at the beginning.
Each committee member will bring specialized expertise that will help shape policies and documentation. Most importantly, committee members will help identify non-existent or stale policies and documentation (both of which can create equally significant problems). To form a comprehensive eDiscovery steering committee, consider adding members from each of the following departments:
Put the weight of the C-Level behind the effort to lend credibility to the team and the process, get the necessary people on board, and get the ball rolling.
- Ensure buy-in from the heads of state at the organization, both in terms of financial support and perception; playbooks have a cost, so C-level support makes sure that the organization and its leadership see clear value in that investment of time and money.
- Provide overall leadership so that both the committee and the organization understand that the effort is supported at the highest levels.
Keep tabs on the committee’s progress – both initially and in maintaining the readiness of the plan as the organization grows and changes over time.
Protect the organization by responding correctly to legal events, based on a full understanding of legal obligations.
- Lead the team with respect to legal issues and enforce regulatory requirements.
- Bring in legal and other subject matter experts as appropriate.
- Make sure that designees of the steering committee are fulfilling their eDiscovery requirements and obligations, especially in the areas of data identification and preservation (which may overlap with regulatory requirements).
- Serve as primary liaison with outside counsel regarding legal issues, responsibilities and related policies and decisions.
As keepers of the information systems, IT knows all the primary systems and data resources used throughout the organization and thus plays an essential role in data identification and preservation.
- Help the committee maintain an updated listing of all primary computer systems, software solutions, and data resources used throughout the organization.
- Work with the committee and/or outside experts to identify relevant systems and take appropriate preservation steps when a legal event occurs.
- Suspend any automated data deletion or equipment recycling processes as may be required to comply with preservation obligations.
Work with internal or external resources on defensible data collection as required for legal events.
As the potential first recipient of a legal event notification (regarding harassment or other such claims), HR’s role is to make sure that employees receive information and training related to legal events and responsibilities.
- Help the organization with training needs so that employees, contractors, and other human resources within the organization understand their roles and responsibilities when a legal event occurs.
- Coordinate and assist with the identification of custodians (those employees, contractors, and other human resources who may have data implicated by a legal event process).
Notify the Legal Event Team (and specifically the IT and IG team resources) when a custodian’s status changes, to help facilitate proper data preservation. This may include notifying IT that an exiting employee is subject to legal hold requirements, so that the exiting employee’s computer(s), devices and data are maintained as needed.
Serve as primary external legal representative for the organization when a legal event occurs.
- Know the organization’s processes, procedures, protocols, and management of legal events (to increase efficiency and therefore cost savings).
- Negotiate and customize an eDiscovery Protocol(s) with opposing counsel, ideally based on a Model eDiscovery Protocol created and routinely updated by the organization’s Legal Event Team.
- Provide expert legal advice on the organization’s obligations in litigation, arbitration, and regulatory (or other) legal proceedings.
- Advise on the intersection between applicable data privacy (and similar) laws and regulations that may impact the collection of data in a given country, state, or other defined region (e.g., GDPR in the EU or various state laws in the US).
Expert resource for all things eDiscovery who helps design and implement the Legal Event Team’s plans, providing assurance that legal events are managed efficiently, effectively, and defensibly.
- Help the organization understand their obligations and industry best practices, both in creating and putting into action the organization’s eDiscovery policies and practices.
- Assist the organization as needed with every step of the EDRM workflow, from the initial legal hold drafting and delivery to the identification, preservation, collection, processing, review, and production of data in legal events.
- Review every process and protocol agreement to ensure feasibility, effectiveness, and defensibility based on industry-established expectations and practices.
- Implement the most useful technology, artificial intelligence, machine learning, and other solutions to ensure the most effective, cost-efficient, and defensible process based on the needs of each legal event.
Make sure the organization understands how best to manage its data resources and reduce potential future exposure and costs.
So, you’ve put together an eDiscovery steering committee. What’s next?
Once you have your team assembled, now it’s time to:
- Set up your first meeting to create the organization’s eDiscovery plan and processes and develop a cadence for the group to meet regularly thereafter; these subsequent meetings are where you examine whether those plans and processes are working as expected and update them over time as needed.
- Establish education practices for the committee, including regular discussion and review of potential triggering events and everyone’s role when one occurs.
- Figure out what solutions (manual process vs. software solutions) to use during legal events, and work to implement and maintain those solutions.
- Establish education practices as needed, whether that’s more advanced education for the team members or general education for the organization as a whole.
Conduct routine post-event reviews to see where your eDiscovery plans worked well or had issues that require updating, adjusting, or expanding the plans.
Think about the last meeting you had about responding to a legal event. What if we told you that you could have a completely different meeting at the onset of your next legal event? Wouldn’t you love for that meeting to be a routine status check-in, where everyone has defined roles, documented tasks, and a guidebook outlining each step to move forward?
The eDiscovery steering committee is your first step toward a calm, organized legal event response process. The second step is the eDiscovery playbook that provides a guideline, a GPS, a recipe book that outlines that process and which can be updated as needed. If you need help getting started, we invite you to reach out to our experts today.