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eDiscovery Playbooks: How to Win by Day and Sleep at Night

eDiscovery Playbooks: How to Win by Day and Sleep at Night

No matter what sport you’re playing, you need a playbook, and litigation preparedness is no different. Regardless of your industry, your organization needs a comprehensive, ‘living’ plan for managing the many roles, responsibilities, processes, procedures, systems, and data tied to a legal event. This includes responding to subpoenas, initiating or defending lawsuits, and responding to an investigation.

On September 22nd, 2022, Business Intelligence Associates (BIA), a recently acquired HaystackID company, shared an educational webcast on the role of eDiscovery playbooks in litigation preparedness. The session was developed and shared by a team of eDiscovery professionals and practitioners and highlighted the definition, description, and design of eDiscovery playbooks. The expert teams of panelists discussed how playbooks can help individuals and organizations streamline processes, create repeatable and defensible workflows, and significantly reduce legal risks and spend.

While the entire recorded presentation is available for on-demand viewing, provided below is a complete transcript of the presentation for your convenience.

Webinar Speakers

  • Karen Hourigan, Esq.
  • Makenzie Windfelder, Partner, McCarter & English
  • Ellen Kuplic, COO, Donohue Brown Mathewson & Smyth LLC  
  • Barry Schwartz, Esq., SVP Advisory Services, BIA 
  • Mark MacDonald, SVP Business Development, BIA (Host/Moderator)

Webinar Transcript

Moderator

Michael Quartararo

Hello everyone and welcome to the webinar channel of the Association of Certified eDiscovery Specialists. My name is Mike Quartartaro. I am the president of ACEDS. Today we are joined by our partner BIA, and I will leave it to BIA to talk about recent business developments. We have a webinar today entitled “eDiscovery Playbooks: How to Win by Day and Sleep at Night”. From my own personal experience, having an eDiscovery playbook is perhaps the most valuable undertaking that any organization, law firm, corporate, service provider could undertake. So a great presentation in store for you today.

Before we get started, please know we love questions. We’re happy to take your questions. Put your questions in the Q&A widget on the screen. Also, if you’d like a copy of today’s slide deck, it should be in the resource widget also on your screen.

Without further delay, I’m super pleased to introduce Mark MacDonald from BIA who will take the presentation from here. Mark, please take it away.

Mark MacDonald

Thank you very much, Michael. We appreciate it. And it’s interesting, as we were prepping to get online today, talking about you, your experience, and having written a playbook there. Of course, we have an all-star cast here today, and without further ado, let’s introduce them.

Again, I’m Mark MacDonald with BIA, which is now part of the HaystackID team. At Haystack, we’re one of the world’s foremost specialized eDiscovery service providers. In the coming weeks we’ll be sharing more about how the acquisition of BIA-Haystack expands and enhances the BIA team’s ability to support you, your IT people, and legal professionals. But back to our presentation for today.

Karen Hourigan, please take 30 seconds to introduce yourself. We’ll go on to Mak and Ellen, and Barry.

Karen Hourigan

Thanks, Mark, and thank you to BIA, ACEDS, and HaystackID for having us here on a really important topic called eDiscovery playbooks. I am a litigator and eDiscovery litigator. As my slide says, I’m currently the founder and CEO of a company called TYTOYME, which stands for ‘Take Your Time Or You’ll Miss Everything”, because I’m extremely passionate about advancing well-being in the legal profession, and so I’m working on building a company to really help the legal professionals have a better time in the profession, and not leave the profession or even worse, because it can be overwhelming, and so I’m building this aggregator of all these things that are resources that people can use to help themselves make their daily lives better working in the legal profession, to make sure you don’t leave, because we need you, we want you, and we belong here, and if you can help us put together eDiscovery playbooks, all the better.

Mark MacDonald

Well said Karen, and Karen is part of our BIA Alumni Association, so we’re especially happy to have Karen here today. Thank you for joining. Makenzie, aka Mak, you’re up.

Makenzie Windfelder

Hi, my name is Makenzie Windfelder, I am a partner at McCarter & English in Wilmington, Delaware. I’m in the products liability group, but my practice, since joining McCarter in 2006, has really all focused on eDiscovery, and in all aspects of the discovery process, litigation preparedness, and then serving as national discovery counsel for clients in litigations, mostly large, complex litigations, but smaller matters as well. I’ve also served as special discovery master in the Delaware Superior Court in a couple of matters in the last few years. So that’s another area that I’ve recently become more involved with. Thank you for having me today.

Mark MacDonald

It is our pleasure, and I think we’re all looking forward to hearing about how playbooks and having a plan affect outside counsel, especially when you are you, leading the charge. So thank you for joining.

Ellen Kuplic probably doesn’t need much of an introduction, but you’ve got your 30 seconds, Ellen.

Ellen Kuplic

Well, thank you. It’s great to be here. My name is Ellen Kuplic, as Mark mentioned. I’m currently a COO of a law firm based here in Chicago.

A little bit about me. I have about 30 years of legal experience, and I’ve played a variety of leadership roles within law firms, in-house and also consulting, but the most relevant experience that I can bring to this conversation is really my in-house experience. When I was in-house for a number of years, I had the opportunity to really build and shape and manage a discovery team, discovery program, which of course, included a discovery playbook. So I’m excited about the conversation, and hopefully, we can answer a lot of questions that people have.

Mark MacDonald

Thank you, Ellen, and Ellen might be being a bit modest today, but she built a playbook for one of the largest corporations on the face of the planet, which we’re going to tap into her knowledge as soon as possible.

Mr. Schwartz?

Barry Schwartz

Welcome, everyone. My role at BIA is to manage our consulting practice, and as part of that, we have the responsibility for working with our clients to draft their playbooks. My background is I’ve been in this industry now, I was thinking back, it’s almost 20 years, and prior to that, I managed a medical device manufacturing company, which had lots of involvement with eDiscovery issues. So looking forward to sharing what we have here for you today.

Mark MacDonald

Thank you, Barry. I’m going to advance our slide, and a little bit of an introduction and agenda. Obviously, we’re going to be talking about playbooks today. Who, what, when, where, why, how, how much they cost, how you start one, who should be involved with them. In life, in sports, in business, you need to plan. Without a plan, success is just a dream, right? We really do live by that, and we try to encourage our clients all the time to create plans, have the right people in place, have the right processes in place. Having even the most minimal plans when it comes to eDiscovery, that thing that we’re all concerned about in our industry, on this phone call, we want to do it right, we want to do a good job, and having that game plan really means the difference between efficiency and ad hoc processes. Efficiency leads to success. Efficiency leads to controlling budgets. Anything other than that is just really a wish.

So we took a little extra time on the intro slide, and without further ado, I’d like to move it straight on into our first real audience interaction here, and so if everybody wouldn’t mind, simple question, and we’ll share the responses with everybody. Does your organization currently have a playbook? And this goes to law firms as well as corporations, so don’t feel like you’re not supposed to answer this if you don’t work at a corporation. We do build these for law firms, and many law firms, I think, are really latching onto the idea that they as well need to have a plan, and if you’re a law firm working with corporations that don’t have playbooks, it’s a really excellent opportunity to help consult with them, and to shed light on this and what it really means to help you as the outside counsel work more effectively with those lawyers. I’m not sure if that was 30 seconds or not, Deja – Deja, ACEDS, is running in the background here – but what we’ll do is advance to our next slide and then talk through it, let people continue to answer the question. That is unless anybody needed more time.

Barry Schwartz

And Mark, I should point out that the responses are all anonymous.

Mark MacDonald

Thank you, Barry. These responses are anonymous.

So let’s get into the meat of our playbook, and we’re on slide number four here. What is the eDiscovery playbook? I’d like, Barry, you, and Ellen to tackle this slide. Of course, for the rest of the panelists, feel free to chime in.

Barry Schwartz

Thanks, Mark. As you can see, this is rather a wordy slide, but it’s a relevant slide because it does outline what the essence of a playbook is, and the key goal, frankly, is that at the end of the day, you want a defensible, repeatable document that when you need to pull it out, because you’ve got a legal event facing you, that you know the who, what, when, why, where and how of your activities in managing that legal event. Ellen?

Ellen Kuplic

It really tells your story, right? I think I’ll probably say that probably too many times, but without this playbook, or without this framework or guide, it’s really difficult to tell your story. As we all know, the lifecycle of a piece of litigation or multiple cases goes on for years, potentially even decades, and without this playbook or the framework, it’s hard to really understand what has been done and how you got from A to B. So having this playbook is a great starting point. Not saying that every case is going to be the same, to go through every step of your playbook, but as I mentioned, it’s a great way to tell your story, to document the process that you’ve had, to confirm that it’s that defensible process that Barry had mentioned, managing the risk of the corporation and then also managing the cost. Without this playbook, without anything, you potentially repeat and repeat and repeat, which of course increases costs. Sorry, Barry, go ahead.

Barry Schwartz

I’m sorry. A couple of key points that will be addressed in the typical playbook are your data preservation requirements and collection requirements, defining the roles of the people in the organization, identifying your custodians, addressing system methodologies, providing a myriad of various checklists along the way so that you can follow them, and as well as recommendations, if there are gaps in your processes, procedures, a playbook can help you address those, because the playbook, and we’ll talk about this later, is a living document, a living breathing document that needs to be addressed from time to time.

Mark MacDonald

That’s right, and I’ll add in that the “who” part of a playbook, talk about who the people are that are coming together to create the playbook. In our minds, in our lingo, we call this an eDiscovery steering committee. We recently launched a brand new blog on this, which you can find by going to our website or going to the interweb and typing in “playbooks eDiscovery”, and you should find it pretty easily, but panelists, a playbook doesn’t necessarily need to be this official bound-to-have booklet. It can start off by being something as simple as, okay, here are the people in different parts of the organization. So I’ll let you take it from there, Barry or anyone?

Barry Schwartz

Certainly. In the playbook, we need to have, as Mark mentioned, the steering committee assembled, and it starts at the top of the corporation, where the requirement we think to have a successful playbook is the C-suite endorsement and commitment to supporting the organization through its creation, and then the follow on, as I was saying, its use in updating and implementation. And then you’ve got the legal team, which is intimately involved. I’m not going to go into all the roles and expectations of each of the team members here, but suffice it to say, the legal team, InfoTech group is important because they know where the data is typically within the systems, and how to stop any automatic deletion processes, and be able to know how to pull data on an as-needed basis. And IG is involved because they deal with record retention requirements that sometimes need to be suspended when there is a legal event in play, and of course, HR knows who the players are within the organization in terms of custodians, if they are – well, not necessarily identifying the custodians, but they know when employees are leaving an organization and who may be on leave hold, which means then you might need to preserve their assets, whether it be email accounts, cell phones, laptops, tablets, or what have you.

And then, of course, BIA is self-interested here, but you need to have a qualified vendor who can work with the client to make sure that things are happening efficiently with the data, and being the cop on the street with dealing with outside resources so that data doesn’t slide around and be in multiple locations over time, and that’s the highlight of the legal event team or steering committee as Mark was describing it.

Mark MacDonald

Well, thank you, Barry. Look, I think it’s very apparent that even through your quick synopsis of what a playbook is, how complicated they can become, so appreciate that.

Some slide results. 41% of organizations have a playbook or some version of a playbook, and a little bit equal don’t, and those of you who don’t know, understood. It could be that it’s been planned, left on the sidelines, come back in and we see that happen a lot too, but thank you, everybody, because this is very helpful information. I think, not just for the panelists, but for you as attendees to see what the landscape looks like.

Moving on, why you need an eDiscovery playbook, and we’ve got the top nine answers on the board here, but we’d also like to talk through this a little bit, and so, Mak and Ellen, I’d like you to take this slide. Makenzie, from your experience as outside counsel, tell us why corporations need a playbook. Obviously, Ellen, from your perspective, you’ve built this. What prompted that, and how did it work in your experience?

Makenzie Windfelder

So it’s funny, looking at the survey results, that’s kind of my experience with my clients. I would say about 50/50 have them versus don’t. I find, I’m sure no one dialing into this call, but a lot of individuals like discovery, they just don’t want to deal with discovery in litigation. It’s stressful, it’s expensive, or it can be expensive, and obviously, building a playbook will take more time. Obviously, business resources, and then there’s also a cost component, but if you do that at the front end, and you put the time in, it will save you immeasurably later on. But that’s not always the easiest. People I think sometimes tend to take a ‘cross your fingers and hope that won’t happen to us’ approach.

I will say that those corporations that I’ve worked with and clients that do have a playbook, they’re much better equipped to deal with discovery issues as they arise. Not only do they have documentation for where data exists, but in this day and age, there’s a lot of turnover, employee turnover, and with changing technologies, and reorganizations within organizations, and how data is stored, having all of that documented is immensely helpful when litigation or investigations or other issues arise.

The Playbook obviously also helps build a defensible, repeatable process, which again, saves a ton of money and time, limits disruption to the business later on down the road when you have to address these issues, and it ensures better compliance with retention obligations, limiting over preservation, ensuring compliance with retention policies, because obviously if you over preserve, there’s an expense component to that as well, and if litigation arises, and you have data that you could have gotten rid of, there’s obviously risk there as well. But then also under preservation and making sure that you’re complying with legal holds, or the scope of preservation if litigation arises.  

Having an eDiscovery playbook – I’m sure Ellen will talk more about this in her experience – you can quickly and effectively identify where responsive information exists, timely address inquiries and meet deadlines. And then be proactive versus reactive. And that can be really important in discovery and investigations because especially in large litigations, being able to put the opposing under on their heels with discovery because you have your ducks in a row. It also enables you to figure what pain points you have, where there might be gaps or issues that you have to investigate. And I think one of the things that’s really important is what was mentioned that it’s a living document, it’s not just a – you create it once and then you refer to it if litigation arises five years down the road.

I [also] think that’s a really important point too that you need to continue to check in, see if it needs to be updated, and make sure you have adequate documentation.

Michael Quartararo

There were so many good soundbites in that. Yes, for sure. So many good points. Ellen, please continue.

Ellen Kuplic

Just from an in-house or corporation perspective, having a playbook and Mak had mentioned quite a few of these items that I would have addressed as well is really helping manage the risk around the discovery aspects of the piece of litigation, or multiple cases, and then cost as well.

If you don’t have something like this, you are going to repeat – I mentioned this before – repeat your collections or whatnot over and over again. It could be different methods, different vendors helping you with that. And within this playbook, you can really put your arms around a process. You can put your arms around external and internal teams as to how you would support an eDiscovery playbook and the process of that as well.

I don’t know, Mark, if you were going to ask another question.

Mark MacDonald

As we were warming up for this, again, Karen made a comment about the Federal Rules of Civil Procedure, and the last time with Mike, Makenzie talked about preservation, collection, and not over-collecting. These are things that are not new in our industry. Data collection, we keep talking about it. We could put different lenses on it as states’ laws change and privacy laws change, and international privacy comes into play. The need to keep looking at your playbook over and over, it is a living document, taking the mindset, as Makenzie mentioned, from reactive to proactive, that’s a huge challenge for people. And maybe you can share a little bit about how that happened in your experience?

Ellen Kuplic

Well, especially when you mention types of data and keeping an eye on what types of data the various clients or business units are using is critical. Having that insight and that insight to plan ahead, and making sure that this type of data is going to be included and noting that somewhere.

So, having those constant conversations with your IT department, development people, whatever teams are introducing new pieces of software technology, places where data is going to reside. Those are the people you want in those strategic teams that you had talked about on the last slides or so. So, you can be kept ahead of the game and being more proactive versus reactive. This is definitely something that needs to be evaluated at a pretty regular – I don’t want to say monthly, quarterly, annually – but it has to be looked at.

But what’s critical is really having that leadership buy-in from not only legal, but the other different departments that really partner with legal during the discovery phase, and having them understand how important it is to have this, to put it in place, and to support it now as well as in the future.

I think that’s what really made – from my experience and what I had to tackle – very successful is having the right people in the room with the right mindset, and the ability to move something forward. Not everyone wants to talk about this, this is not all fun and games, and understanding what my role is, how we’re going to get this accomplished, and why are we doing this is very critical. And it really means success if you have the right people around that table.

Mark MacDonald

Absolutely. This is an insurance policy. People’s careers could potentially be on the line if we don’t do this right. You want to have a [inaudible] conversation, call your favorite general counsel, let them know that you’re not going to meet the HSR deadline or that you accidentally produced a whole bunch of privileged documents because you thought it was a keyword search in Outlook and then produce PSTs to the DoJ. So, it is crucial to have a plan and thank you for your insight there.

The last thing I’ll add on this slide or I’ll ask the panelists on this slide is how big of a company do you need to be. How litigious do you need to be? One litigation a year, three, five, 100? Who needs a playbook?

Makenzie Windfelder

I think everyone really needs a playbook just because regardless of the size of the entity, you are going to be faced with some kinds of issues in the future or at some point in time. And having this information documented in a central location is going to make that process so much easier and more efficient if you have it all documented now.

And playbooks, like you said, don’t have to be this huge bound document. There’s different types of playbooks, but I really do think that any organization should have one.

Mark MacDonald

Thank you. And here it is, the ominous dangers of not having a playbook slide.

Mak, Barry, Ellen, again, I’ll look to the three of you to take lead here and Karen to add some flavor.

Makenzie Windfelder

Really, the “fire drill”, that’s kind of the starting point, you’re scrambling, you don’t know where the relevant data is, you’re trying to identify who your relevant custodians are, or who individuals within the organization who know where the relevant repositories are. That’s a big issue.

And one of the things that – the reasons this needs to be a living document is that I can’t tell you how many times even IT doesn’t know about applications or sources that the business is using. So, a group thinks it would be great to use Application X or some sort of database and they don’t tell IT. So, they are just using this, and then it comes out during litigation.

So, in addition to involving those who were listed on the prior slide or who were discussed, I think you really need to make sure people are talking to the business as well.

Over and under preserving, that is something I mentioned before and I think that that’s a big risk. But sanctions, at the end of the day, if you’re involved in a litigation or investigation, if you don’t know where your data is, you are really putting the corporate reputation at risk and can be exposed to financial or other sanctions.

And that will carry through to other matters. I also had a client once who was sanctioned for eDiscovery issues, and you bet, the next big litigation, the counsel walks in – plaintiff’s counsel walks in holding that sanctions opinion, and this client can’t be trusted because they don’t know how to handle discovery. So, you’re really under the microscope. And so, I think that that’s [important] too and having a playbook to mitigate that risk.

Barry Schwartz

One of the themes that’s overriding here is, as you just said Mak, is to manage and minimize risk to the corporation.

In a recent playbook that we put together for one of our clients – and you mentioned IT not knowing what software is out in the wild within the organization – we interviewed broadly across the organization with senior leaders, and we found that there was rampant use of Slack within this company, and not a sanctioned product. IT wasn’t aware of it. Legal wasn’t aware of it. But there were quite a few licenses for Slack, not an enterprise license, and that was risk avoided, because now they have an enterprise license, and it’s a known resource in that organization. And if and when they have a legal event – and this, by the way, is a large corporation that doesn’t have a lot of litigation. But they had senior leadership who wanted to put the playbook in place. For them, it’s very much a live, living document. We have regular conversations with them as they’re working their way through.

And they’re addressing the nine squares on the screen. They don’t want the fire drill. When they’re faced with a legal event, know exactly what they need to do, and manage the matter from beginning to end.

And all the clients that we’ve worked with in that regard, that’s why.

Another reason and another danger of not having a playbook is when you have a seasoned legal team that knows how they’re doing everything, but they have the institutional knowledge that’s not documented. And if one of them were to retire or to move on, that whole vast amount of information goes with them. So, it’s important to memorialize the processes and procedures even if the legal team and the corporation have a clear understanding of what’s being done. If it’s not available to be shared outside of that close-knit group, then all sorts of problems could arise.

Ellen Kuplic

Another risk, I guess, if you think about the employees in the team that are responding to some of these requests or managing the discovery is really about employee satisfaction and retention. Without a playbook, you add how much stress to these individuals within legal, within IT, or whoever is supporting the request. And with this playbook, with these guidelines, with the somewhat instructions on how-to, people feel engaged.

The employees feel engaged, they know what they need to do, they know how to enhance that process. But without that, they’re doing those fire drills, as Mak had mentioned, over and over again, and at times that’s incredibly frustrating and you’re going to have turnover left and right.

Karen Hourigan

Mark, I have something to add. So, the square that jumps out at me in the Hollywood squares here is quibbling over who’s in charge. And I think without a playbook, yes, you might quibble over who’s in charge, but you might also quibble over who’s responsible for what.

And this sort of dovetails into what everyone has said, and I will highlight what Barry said that it’s like if you’ve got people who have been running the show for years without a playbook, without a lot of documentation, and if they’re getting ready to leave the organization, I think that’s a great use case to put together as much as you can of a playbook. Because otherwise, everyone is going to start fighting over “Wait a second, now that Mary is gone, I don’t have the capacity to take over XYZ”. But it’s like if you can take the time and really sit down and figure out who are the right people, or do we need more headcount or something to make sure that nothing gets dropped when this incredibly valuable resource to go enjoy their lives? I think that’s a great time to avoid all of these risks and the dangers of not having a playbook, and there’s lots of these spaces for why to have one.

But I think that’s a great because, oftentimes, if someone leaves and then everything gets dropped, it’s like a lot of people go out with them, and then you’re starting from square one. And you don’t have to if you can address this proactively.

Mark MacDonald

Such a great point, Karen. The great migration is real, and the great migration of corporate institutional knowledge is certainly part of that. This is that place where policies and procedures, and CYA type of legal actions really do live. So, thank you for adding that, super important.

First steps. Karen, keep you on the seat here. Where do we begin? Your in-house counsel, paralegal, outside counsel, where do you start with this? Who do you go to? How do you get that corporate sign-off, the buy-in from the executive teams?

Karen Hourigan

So, I might surprise everyone here, because I might have a different – I might be thinking about this a little bit differently today than I was before. And part of that is based on our survey responses where we’ve got 41.4% of the audience have a playbook, 43% don’t, and 15.5% don’t know. And I completely agree with the idea of having an eDiscovery steering committee.

In my role, I have been both – I have been a drafter of an eDiscovery playbook, a consumer of an eDiscovery playbook, and an enforcer of an eDiscovery playbook. And so, when you’ve got an eDiscovery steering committee like we’ve got represented here, which is a cross-functional team within the organization, that’s the holy grail. That gives you the best chance for success.

But because I’m talking to you all from New York City, and years ago someone said to have a good time in New York, you have to be young, rich, and single, you can get away with two of those things, but it’s best to have all three. And I don’t live in New York and I’m none of those things, so I’ve never been rich, except maybe rich on personality. But I feel like maybe people here are a little bit overwhelmed by this presentation, that it’s like I need to have a big legal department, massive litigation profile. I need to have a well-defined and well-staffed eDiscovery team in order to really tackle a playbook. And I have to have a huge budget.

And if anyone follows me on LinkedIn, you know that I was going to use this quote during this session, and that quote comes from President Teddy Roosevelt where he said, “Do what you can with what you have where you are”. And I feel like, ultimately, you want to be where you have this cross-functional eDiscovery steering committee, but it’s almost October and maybe you’ve got $5,000 in your budget, or maybe you’ve got a little bit of buy-in within your team. Maybe someone’s directing you to do this from on high. But I think really understanding what are we trying to accomplish here and what do we need to accomplish, and can we accomplish right now with who we are and what we have. And a real pain point that we can just close that gap now, I think that sort of thought process is very helpful with what we have here displayed on the screen. Being your ultimate goal of like the way we’re going to have the most success, the way we’re going to reduce the most cost, pain, and risk.

And again, because I’m in New York, the way we’re going to work with “What is CPR in the NYPD?” I’m forgetting the C, but it’s professionalism and respect. And the C is courtesy. Courtesy, professionalism, and respect. You name it, CPR.

Maybe you have a playbook that you built 15 years ago and you need to pull it off the shelf and resuscitate that thing. But I just think that the first steps to building a playbook is really taking an assessment of where are we, and where are we trying to get.

And I think what we have here is absolutely where you want to be. It’s a cross-functional team. But if you can’t put together tomorrow, maybe you can put it together in five years and that will get you to where you want to be.

Mark MacDonald

Yes, exactly, right?

Ellen Kuplic

A lot of us can’t boil the ocean, we cannot do everything at once and how do you start? As Karen mentioned, you bite a little bit off the apple and knowing where you want to be.

In my experience, it was really almost like a grassroots kind of movement. I’m talking 15+ years ago, where people had interest in learning a little bit more about legal holds, eDiscovery, how to collect X, Y, and Z. And building from that.

I didn’t prepare a process, and it started small, and it continued to grow. It ultimately grew into something similar as you have on the slide here. But starting small is okay, you’re stepping in the right direction, you’re making that commitment that this is important, and having leadership buy-in and understanding that this is important and we are going to start down this journey because it is a journey. It’s definitely not something you’ll get done overnight. But it’s important.

And I think having an interest and really wanting to invest and, getting where you want to be into some type of eDiscovery steering committee that we have is a great starting point.

Tap into those resources that may not be your standard attorney, paralegal, or lit support person. But someone may be very much interested in building on this and creating a new career.

I think a lot of us probably started in one of these careers years ago, but if you look today in the legal department, in the IT department, there are so many more careers because of the eDiscovery movement.

So, keep your eyes open, be mindful, and also be open to suggestions of other people who may not be on the screen right now under your eDiscovery committee, but could really help you get where you need to be.

Mark MacDonald

What we’re not able to share today is a sample playbook. Playbooks are very specialized. They’re very customized. They can be simple. They can be super complex. Very detailed.

If you are talking with a vendor, service provider, or consultant, ask them if they have components of playbooks that might be easy for you to just adopt quickly.

Barry, Karen, you can give examples. ESI protocol, where does that fit in the playbook? How often does that change? It’s certainly a component. Production protocols. Data collection. We talked about all those things.

So, completely agree with the panelists. You don’t need to try to eat the elephant all at one time. Mentally prefer for it. Get a sample index and start to fill in certain important elements to you, especially those things that can help drive efficiency right out of the gates.

Does anybody have anything else to add on this slide? I’ll give it a second here, otherwise, we’ll carry on.

Makenzie Windfelder

Yes, Mark, I did want to add a lot of the comments thus far in determining that is focused on the collection and understanding of where your data is, but you raised a great point about eDiscovery, ESI orders, and protocols. It’s likely that you might have a different protocol on different matters depending on the size of the matter, who plaintiff’s counsel or opposing counsel is. But there might be provisions that are really important to your organization, either from a cost perspective, a risk perspective. And so, having that documented so that counsel across litigations are aware and is being consistent.

I do recommend having discovery counsel, if you have discovery counsel, be involved, not in all aspects of the playbook necessarily, but when it comes to how are you going to handle responses to preservation demands, or requests for 30(b)(6) testimony on ESI. Different topics like that. What’s in an ESI protocol? Potentially, what’s in a protective order?

Phasing of discovery so that if outside US data is implicated that that’s phased later. There’s a lot of things to consider depending on the organization. And having eDiscovery counsel who can help guide that and then your vendor who is going to be handling productions, that is very helpful to get them involved to an extent as well just from a technical perspective to make sure you can comply.

And again, across matters, you don’t want to be saying one thing in one litigation, and something totally different in a different litigation, because it could obviously end up coming back to bite you.

Mark MacDonald

Highlight that point right there, Makenzie, that’s an excellent point. Thank you for adding that.

Budgeting. This is something that we spent a lot of time on (the panelists) contemplating how to communicate this to the audience when someone says, “What does it cost to do the playbook?”

So, let’s see if we can help settle some nerves, or at least help people put a number in the back of their head.

Barry and Ellen, why don’t you start off on this one?

Barry Schwartz

Well, I’ve recently don’t a couple of playbooks for larger organizations. And one very complicated, one not so complicated, and the not so complicated organization, we spent almost double the time because they were less organized. And 100 hours is probably a good starting point.

And as Mak was just saying, if you’re a smaller organization, it may not be nearly as involved as it is for a larger one, but the building blocks for each of the playbooks is similar. Know what your exposure risks are. Know who controls your data. Know who might be involved with the matter. Know how to flag that data and the individuals, so that there’s data preservation in place. Know how that data is going to be handled, who outside counsel is.

And as Mak was saying, have model documents available. And those are things that we can provide, counsel can provide, model ESI protocols that is common at BIA has been used in its various forms in thousands and thousands of matters. It’s a starting point. And if something, as Mak was saying, is unique to your organization, model your ESI order after what your requirements are.

And as mentioned earlier, checklists are key. And those things don’t cost a lot to get together, but it’s still time to identify, interview, collate, draft, and go through the steps.

And when we present a playbook to our clients, it’s a draft, because it’s a living document. And it may take months or longer to get from version point-whatever to version 1.0, which is the published playbook, and it’s still a live, living document.

So, back to the budgeting question. It does, to a large extent, depend upon how complex your organization is. If it’s a single-line product company, a single-line service company, it may be a lot easier. But if you’ve got a diverse set of offerings to your client base, your [inaudible], it gets more complex.

Ellen Kuplic

I think as you relate to budget and, ultimately, what you’re going to ask for the budget or an estimated cost, I think you have to ask a couple of questions. How much do you want to do internally? Do you have resources that can spend 50% or 75% of their time helping with this process? Because that’s going to make a big difference. Are you providing them the information and they’re doing the documentation piece of it.

So, you have to really look inside and understand do we have the time to do this. And where does it fall? And who is going to be driving that? It’s a big question in order to move this forward.

I also think starting small, putting these in various cycles. Let’s look at the legal hold, let’s look at our data map, items like that. You can segregate these into multiple projects or multiple pieces of your puzzle that you could potentially all combine at the end as well.

So, a great way to look at this is maybe you start with one and then you add to it in the future, and you build that momentum which would then also build the interest, which of course then builds the support to give the funding.

When I had done this internally, something that we had looked at is trying to get the support from the actual business. So, the various clients or the business lines that Barry mentioned as well. As we all know, legal doesn’t generate revenue. Legal typically is just a revenue sucker and takes the revenue out. But if you go to your various business units or business clients, and if they are a repeat customer or someone who is very much in the midst of litigation over and over again, they would support this.

They want to support. They want to be able to create this process so it’s repeatable and defensible and, ultimately, a little easier for their employees to help give that data or to be a part of an interview process.

I guess my point is don’t just go to legal and ask for funding. Try to get support outside of legal as well, the customers that you would be supporting outside when you’re thinking of budgeting.

Mark MacDonald

When we were putting this presentation together, Ellen mentioned that going to the business units that are the biggest consumers of the legal team’s time, and I thought that was a really interesting point there. And I’m glad you mentioned it here Ellen. You might have lots of different business units inside your organization, and the ones that have relied on the legal team, outside counsel, eDiscovery vendors to facilitate and help manage legal events, they probably have the most significant opportunity costs of not having a playbook. So, I’m glad we touched on that.

Barry Schwartz

Just to put a dollar sign on the cost, we’ve seen on the very basic playbooks up to the very intensely written ones, a range of $15,000 to $100,000. And in many cases, that’s the reality of the world.

Mark MacDonald

And as we said before, whether you’ve got zero budget, a $5,000 budget, 15 or more, pick a starting point and begin there. Seek more budget if necessary, but hopefully, it’s not hard given the information here, various experts you can tap into to start to build that momentum and, ultimately, win with your playbook in hand.

Karen Hourigan

Can I add something? Sorry, Mark, can you go back to budgeting? Just because I think of budgeting in a multi-faceted way because what’s the one thing that clients hate? And that’s surprises. And so, whether you’re in-house and your clients are internal, or whether you’re a service provider, or whether you’re outside counsel, whoever it is who is putting together a playbook, someone is the advocate of we need a playbook. And so, presumably, that person either already has the money or is trying to justify getting the money.

But in addition to the money – a slide back or two slides back when we were talking about the eDiscovery steering committee – I feel like it’s really important to manage their expectations in terms of how much time and effort and energy and what their role is going to be in terms of a playbook. So, to Ellen’s point, you can manage their expectations and put it out there for them to understand that it’s like I’m not asking you to write me a check, I also need you to participate in this process. But if you’re in IT, I probably don’t need you to be on the call if we’re talking about the 502(d) order. It’s putting the right people at the right place at the right time, and really trying to avoid wasting time is important.

In terms of the magic number of 100 hours, I think that’s a very realistic goal. I think different providers, whether it’s outside counsel or a service provider may offer different cost structures, whether it’s pay me X number of hours, or we’ll provide this deliverable at a flat fee rate. I know in my experience if it’s at a flat fee, I impose all sorts of rules on my clients of I need your consolidated feedback. We’re going to go through two runs of revisions because as we mentioned on our prep calls, it sometimes really feels like as soon as you get your playbook done, it’s like painting the Golden Gate Bridge where you’ve just finished and now you start all over again. And that can be exhausting, and I don’t think it’s necessary. But if you haven’t prepped people that you’re expecting a couple of turns or they’ve got roles in different places, they can lose momentum in really being a valuable part of the team if they feel like they’ve been misled about what the process is and where they’re going to be plugged in and plugged out.

Mark MacDonald

Thank you, Karen. I’m glad you rewound us on that. Excellent point. And I especially like your analogy of painting the Golden Gate Bridge. I think that’s totally legitimate and avoidable as long as you are moving forward with your plan and keeping to it. Not so easy, but definitely a goal.

Maybe my favorite slide just because of the cartoon. However, pick your starting point. You have experience with this. Certainly, Ellen, Makenzie as well. So, since you’re here Karen, tell us where do we really start.

Karen Hourigan

I love the graphic, by the way, it’s beautiful.

Where do you start? In my experience, I think, it goes back to the dawn of time, people, process, and technology. But I think it’s important from a people standpoint of who is the person who is advocating for this. Who is the person who is going to be the decision-maker? And I think it may be up to that person to either decide independently or to talk with other folks who are involved in the process of what’s our biggest point… I now my live my life with this statement of “What would make today great?” What’s the one thing that if it happened today, today would be great?

If we’re just doing one thing, what’s the one thing that if we could fix this in our process, this would make our lives better? Maybe not great. But just figure out what is it that would make our lives better.

Is it do we need a legal hold tool? Do we need to have really – a checklist on what collections look like? Do we need to update our custodian interview process? Whatever it may be. Do we need just a roles and responsibility document, an org chart that sets forth who is in charge of what so that you can hand that to your – you can hand that to your clients if you’re in-house? You can hand it to your outside counsel so they know who to call and who to talk to. You can hand it to your trusted service provider so they know who is in charge of what. So, not everyone is getting every single email. Because I think we’re at a point in the profession where you can’t get every single email.

To have just one thing fixed and have a process and a protocol in a document or a template around one thing is really important. If you’ve got a budget for 100 hours, absolutely. Even if you don’t, hire an expert. There are templates out there.

The expert will say, “Well, this is our… these are our templates where we start from, it will take some time to tailor it to you”. But if you’re starting from a blank piece of paper, then you don’t have to. Call me. Call Mark. Call Barry. Call Mak. Call Ellen. We could just point you to a lot of resources. It’s out there. But it does help to have a trusted service provider, whether it’s outside counsel service provider, whoever it may be.

Having someone who has done this before is critical, and they might be able to help you figure out. Here’s what you can tackle with your budget. Here’s what you can tackle by the end of the year. Here’s what you can tackle on your own. But picking a starting point is critical.

Mark MacDonald

You’re so right. Ellen.

Ellen Kuplic

As it relates to a starting point and picking it and moving forward, I think the best way to also tackle this is look back. Look retrospectively as to how have you handled discovery in the past. Trying to think about reutilizing what you’ve got, and maybe it is good and all you have to do is spruce it up a little.

There’s so much information out there in how you’ve tackled things in the past, budget, documentation, XYZ vendors, performance vendors. Take a little time and look back and do some lessons learned as well. it would really help you picking out your starting point in the future.

Mark MacDonald

Let’s agree, it’s cheaper to hire an expert than it is to go it on your own, right? Ask your friends, ask your experts for help with this. There are low-budget entryways to start to build your playbook.

And from a vendor perspective, I’ll tell you one of our mottos is Educate Them, and They Will Buy. Your vendors should be very willing to provide you with information and starting points to help you along the road.

We’re coming down to our last few minutes, and this is actually our last slide, so well done panelists on the timing.

So, you’ve built your playbook – we’ve addressed this a little bit throughout the presentation – but now what? We agree it’s a living, breathing document. But you’ve got your playbook. How do you use it? How do you take this thing and make it valuable?

Mak, we’ll start with you on this one.

Makenzie Windfelder

So, I think using it, so you’ve invested the time and effort to create a playbook. So, really, it’s now about getting it to the people who need it, making sure that everyone is well-versed in it. If there’s parts for counsel, making sure that you get it to them so that they review it in advance of meet and confers, or committing to anything in ESI orders or any other kind of discovery protocols.

And then updating it, as we said, just to make sure that it is current, given technologies and the volume and number of different types of data and locations for data. It is something that needs to be continually revisited. But that doesn’t mean that the entire playbook needs to be rewritten. It just means updating a portion of it.

So, I think it’s really – you put all this time into it, so make sure that people are utilizing it. Make sure counsel’s utilizing it. Make sure vendors are utilizing the portions they need to. You don’t want to waste all the time and effort you did to build it and then not put it into practice.

Mark MacDonald

That’s right, and by the way, outside counsel deserves a seat on the eDiscovery steering committee. It’s not just an internal team. Outside counsel, experts, your vendors, everyone needs to be a part of that both internally and externally. If I recall correctly, I believe one of our panelists talked about flying around to all the major outside counsels for the corporation and sitting with them and making them understand the value of the playbook and what it meant to the corporation. And that it was required that they follow the playbook.

I forget who that was – if somebody wants to raise their hand – but in our last couple of minutes, any closing thoughts from the panelists? This is your moment.

Barry Schwartz

Mark, I was going to make that point. Education of all the parties involved with any given legal event can happen with the playbook. And as Mark was just saying, outside counsel is, in many instances, the hardest one to bring across the line to follow the outlines of the playbook.

Outside counsel has their way of doing things, the corporation has their way of doing things, and it’s the corporation’s money, it’s the corporation’s exposure, it’s the corporation’s reputation, and this is how we as the corporation do things. And outside counsel, we need you to go along with how we’ve outlined our processes and procedures in the playbook as it fits the particular case. Obviously, each case has its unique characteristics, but the playbook is the playbook, it’s the starting point. And in many cases, it’s the endpoint for how the matter is managed.

Mark MacDonald

Ellen, Karen, Mak, any last thoughts?

Karen Hourigan

Education is critical. I agree. Going out to your vendors, not only once – as well as outside counsel – but quarterly meetings, a great way to continue to enforce the process and the playbook that you’ve put in place.

Makenzie Windfelder

Having your outside counsel come to you in your eDiscovery college and have them pay for it maybe also works. But it at least gets the right people in the room to carry the message throughout the firm that this is critical, they just communicated to us how important this is.

Mark MacDonald

I’d say to Barry’s point about outside counsel, it’s a living, breathing document. So, although it is this starting point, it’s not the end-all-be-all. So, case by case, matter by matter, a different situation, it is appropriate for outside counsel to come in and say, “Yes, that’s correct, that’s the way that you’ve got it written. However, in this particular instance, we may need to consider a different approach”. And the importance of the playbook is you’ve got a starting point to have those discussions. And I think we’d all agree that without that, again, we’re right back to square one. Without a plan, it’s just a dream.

We’re at 14:01. Mike Quartararo, I’m going to give you props for this one. We talked about CPR, courtesy, professionalism, respect. Mike’s own analogy there was collect, process, and review. So, he put the eDiscovery on that. Good job, Mike, give you props for that one.

Any questions we didn’t get to that are in the chat, we will certainly give thoughtful answers to and respond to the group, as well as the thank you email, which will include not only the contact information for all of our panelists but also a link to the brand new blog we talked about earlier about a steering committee, which I think you’ll find to be very rich in content and hopefully helpful.

Everyone, thank you so much for attending. To our panelists, a special thank you for taking time out of your day to share your knowledge, and our wisdom, and you are the all-star team of playbooks. And I can’t tell you how much we appreciate it on our side for you to be here. And I’m sure the audience feels the same. So, again, thank you very much, everybody.

Have a great day. Happy eDiscovery everybody.

Michael Quartararo

Thank you, Mark. Thank you everyone for joining us on the ASEDS Webinar Channel today. Thank you, of course, to Ellen, to Karen, Barry, and our dear friend, Mark, and of course, our partner BIA. You can learn more about BIA at Top eDiscovery, Digital Investigations & Forensics Experts – BIA , trusted providers in the space for as long as I’ve been in it. So, please look them up.

And please visit ACEDS.org for a complete list of upcoming webinars.

Have a great day everyone and be kind to one another.

Mark MacDonald

Thank you, Michael.

BIA

BIA

For nearly two decades, BIA has been protecting companies and law firms by solving complex eDiscovery and digital investigative issues while keeping costs low and legal defensibility high. If you would like to know more about how we help our clients lower costs and risks, please contact us.