During recent onboarding with a new large client, I was pleasantly surprised to see a communication protocol on the agenda. In my experience, clear and consistent communication protocols are often neglected in the eDiscovery process, despite their critical importance. Simply having an email distribution list is usually insufficient.

Foundational Importance

A recent survey of more than 700 project professionals in large enterprises found that poor communication was the biggest barrier to project success — even ahead of organizational change and budget.

It is, therefore, vital that everyone involved in an eDiscovery project understands the “who, when, what, why, how, and where” of project communications from the outset. That’s what a communication protocol defines, and it’s vital because eDiscovery is not getting any simpler. Also, the style of communications in law firms is still often quite different than that in eDiscovery service providers.

This is particularly important as the number and type of stakeholders in eDiscovery continues to grow – including in-house counsel, external counsel and litigation support, service providers, etc. The growth of legal operations professionals and their increasing role is an example.

A good communication protocol is critical to meeting discovery deadlines, reducing cost, avoiding costly errors, and maintaining privilege and confidentiality.

But nothing on the following is meant to produce merely more communication to more participants. On the contrary, a communication protocol should produce efficient – and lower volume – communications.

Building a Strong Protocol

Crafting a strong communication protocol requires attention to key elements, including:

  • Stakeholders – Defining the stakeholders, or project participants, may seem deceptively easy. Yet, eDiscovery is a complex, multistep process as defined under the EDRM model. Thus, the stakeholders early on will likely change as you move through the phases of the EDRM. You will likely have to adjust the communications accordingly, as well.
  • Defined Roles and Responsibilities – Communication protocols inevitably articulate with the question of roles and responsibilities and defining those can be challenging. For example, who makes the final call on QC for second-level privilege and how long should this take? What if that person is unavailable?
  • Levels of Communication – Except for the smallest projects, it’s inefficient for every stakeholder to receive every communication. Define who needs to be included in specific communications and avoid “jammed inboxes” that lead to confusion and errors.
  • Communication Discipline – Implement practices like one email per eDiscovery project, email chain management, and a clear subject line style to improve clarity and organization. Additionally, clearly define who needs to take action in an email message by addressing that action to the person or team, especially on large distributions. And create protocols to ensure that new topics are addressed in separate email threads and not added to never-ending email threads that jump between topics, making it difficult to manage, track, and document key decisions and deadlines.
  • Standardized Communication Channels – Designate specific channels for all communication, such as email, collaboration platforms like Slack, or dedicated eDiscovery platforms. Most organizations likely utilize multiple channels, and not all participants can or should have access to those channels.
  • Reporting and Updates – Define the content, creation, distribution, and retention of reports and updates. More is not necessarily better, as studies show project managers spend excessive amounts of time writing descriptions of what is or has been done.
  • Dispute Resolution Mechanisms – Establish a clear process for resolving any communication-related issues that may arise.
  • Written Communication – Encourage written communication over verbal exchanges to maintain comprehensive records. NASA documents I once worked on were emblazoned: “No verbal instructions” on the front page. While attorneys understand this in principle, there’s often a tendency to rely on phone calls with questionable record-keeping when time crunches occur or things go wrong.
  • Privilege and Confidentiality – Identify areas where project communications might raise concerns regarding privilege, confidentiality, or privacy.

The nature of the communication protocol will naturally vary depending on the eDiscovery project’s size and complexity. However, the principles outlined above provide a solid foundation efficient communication for most eDiscovery projects.