Dealing with ediscovery is complex, and the details to be handled are endless.

Dealing with electronically stored information (“ESI”) is complex. The details to be handled are endless, and the skill set needed to do it effectively is highly technical.

Those of you who deal with ESI are nodding your heads, and those of you who let someone else do it truly do not understand the complexity that is involved. That’s ok, but you need to learn so you can have the right people doing the right jobs. And you need to learn to appreciate the expertise that they bring to the table.

By way of example, remember the last time you tried to search for an email you knew was in your inbox but you couldn’t find it, no matter how many searches you tried?  The systems that we use to create, send, store and manage ESI were never designed to pull data for purposes of litigation. That means that to engage in ediscovery effectively, you need people who think about how data functions, where it lives, and the complexities of the various forms of data.

As a litigator, you need someone to handle that data and get it into a format that you can look at. That person is your project manager.

You may call the role something else at your firm  (e.g., litigation support manager), but the role is the same.

As I work with clients across the country — large firms, small firms, corporations, government offices — I see lawyers assuming that picking up the complexities of ESI and handling data is something their paralegals can just do. I’m here to tell you that it’s not. And understanding the difference between these two roles may help you understand why you aren’t getting the help you need in ediscovery.

If you are expecting your paralegal to have the skill set necessary to manage ESI, including setting up and managing your databases, without some serious training, you are putting yourself and your clients at risk. 

Let’s look at the traditional role of the paralegal — one that is critical to the success of any good litigator. Your practice may vary to some degree, but as a general rule, these are some of the broader tasks of a paralegal:

  • Managing the case file
  • Sending out subpoenas
  • Setting up depositions (court reporters, etc.)
  • Tracking productions from all parties
  • Organizing witness binders
  • Deposition preparation
  • Handling appellate filings
  • Creating trial exhibits
  • Preparing for trial

Compare and contrast that list with the duties of a project manager:

  • Working with the litigation team to identify key custodians and sources of ESI for collection
  • Working with IT at the client to figure out how to collect effectively and efficiently from the client
  • Performing or managing the collection process with a provider
  • Receiving data
  • Loading data and resolving any issues with data — examples can include corrupted files, records without files attached, rendering issues, etc.
  • Performing a check that all required metadata has been received
  • Ensuring documents are OCR’d as needed
  • Setting up a database for a matter
  • Creating searches, filters, and tags, and utilizing the features of the review platform to enhance the lawyer’s goals for the case
  • Creating redactions, privilege sets, and production sets
  • Doing quality control on production sets according to defined parameters for the case, including date ranges, custodians, topics, etc.
  • Sending out productions
  • Loading productions from other parties and identifying holes in the productions or metadata provided

See?  The two sets of skills and requirements are completely different. I want to be clear — there are many paralegals out there who both have the capability and desire to learn the skill sets of a project manager, so that may be a viable path. But they have to have training, and their roles need to be defined. If you are using your paralegals for ediscovery, find out what they really know and what they don’t know. You can outsource some or all of the required skill sets, but you need to identify where the gaps are and what you need to fill.

Your paralegal manages the matter; your project manager manages the database of ESI. The paralegal is your expert on case knowledge; the project manager is an expert on your review software. The paralegal knows who everyone is at all parties, what has happened in the case, and the case status. Your project manager knows who the custodians are with data, how many productions have been made and how, and what can be done to better manage the database more efficiently for your client.

The project manager role is new — it’s unique to dealing with ESI. You need one, and you need one who knows the technology you are using like the back of his or her hand. Not all firms have enough work to have a full-time project manager, that’s true. So train up those paralegals at user conferences for the software you are using, and whatever methods you have so they can do the job you are asking them to do. Or get outsourced project management from your software provider.

Acknowledge the difference in skill sets. You wouldn’t have a tax lawyer try your commercial litigation case, would you?

This article first appeared on Above the Law.