Electronic Discovery as Organizational Change—Why Companies Struggle to Succeed

This blog is being published here and, in a few days, at The Ritter Academy.  While focused on e-discovery, it has even broader implications when the analysis is applied to broader initiatives in building trust in digital information.  Whether for improved privacy, information security, electronic commerce, unified communications, cloud-based service delivery—or electronic discovery—success can be improved if we can employ maps that show the path forward, put people on the same page and allow them to see the entire picture!

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The economic pain and adverse outcomes that companies have endured as a result of their historical underfunding of information management have sent the message –we have to improve how we find and manage digital information as evidence.

But, despite the message ( and the fact that fewer messengers are being killed for having delivered the message!), companies (and their lawyers) are still struggling to implement functional, defensible programs.

After all, if they were all getting e-discovery right, its unlikely Gartner would have projected the global marketplace for e-discovery software to grow—47% from 2009 to 2011! And, Gartner acknowledges, that projection largely takes into account only the U.S. market. What does Gartner project as the overall spend for this year? $ 1.49 billion.

Of course, Gartner is only looking at one of the many checks to be written to install improved e-discovery capabilities. External costs include legal, consulting, hardware, training, software support, etc. Internal costs include many of the same, as well as operating costs associated with the facilities, personnel, utilities, and management. To my knowledge, no one has estimated the overall spending that is being allocated to the overall investment required for e-discovery processes to be improved.

But, in my mind, spending on e-discovery software (as well as the other costs) is a patch—a remedy for poor records and information management infrastructure that enables organizations to find and validate information required for any legitimate purpose (including as evidence) with appropriate speed, quality and accuracy. So, why are companies spending so much? Why are the number of cases being reported by e-discovery analysts continuing to increase in volume, nearing two published decisions per week in 2011?

E-Discovery as Organizational Change

To answer those questions requires looking at electronic discovery differently—lets think of the innovations demanded by improving electronic discovery as organizational change. When we view e-discovery in that manner, what becomes a critical truth to navigate is that– across industries, technologies, geographies, and processes—organizational change usually fails!

According to consistent research during the last decade, here are some sobering statistics:

• Up to 85% of organizational change initiatives fail.
• Up to 70% of these failures are due to flawed execution.
• The failure rate of change initiatives dependent upon people (reengineering, TCM, cultural change) is 80-90%.
• Less than 10% of what is taught to staff in the classroom is transferred to the job.

In fact, e-discovery process improvement demands change on many levels. To name a few: 

• movement from indexed, boxes of stored paper records to massive digital archives and tapes;
• movement from stable content on a printed page to dynamic content, such as web page content, databases, etc. that demand constant management to assure required preservation occurs;
• movement from controlled records stored within an enterprise to outsourced and/or cloud-based storage involving multiple locations, often shifting without the prior control of the record owner;
• migration from wired, networks and systems of controlled devices to wireless, remote, mobile devices;
• acceleration of discovery from a deferred exercise (after all legal motions and counter-motions on legal grounds are exhausted) to an exercise requiring immediate and comprehensive action at the outset of a case (or even before, if litigation is “reasonably foreseeable”);
• reconfiguration of the teams required to recover and manage potential evidence from largely internal resources (records managers and key witnesses) to significant engagement of contracted assets: software, hosting services, outside law firms, e-discovery consultants, forensic analysts, etc.
• migration from largely manual management (Bates numbering, indexing, physical review) to automated management (electronic UPC codes, digital processing, automated reviews with search terms, review of electronic files, etc.)
• introduction of automated logic, predictive coding, management of false positives, etc. to replace attorney review and judgment on relevancy and responsiveness.

That list is pretty compelling—and a good insight into how much e-discovery process improvement demands as organizational change. But what can we learn from the world of organizational change management to help improve the investment returns and probabilities of success within companies? What can consultants, law firms, software vendors, and data custodians do to improve their own credibility with corporate customers?

Improving Organizational Change with Maps

The opening statistics hint at where the e-discovery process can be dramatically improved. But we are continuing to also learn how RitterMaps are more powerful than we first realized at enabling improved outcomes for organizations.

Flawed execution is a reflection of poor planning, poor discipline in execution, and the absence of meaningful metrics against which to incrementally measure progress. But flawed execution is also a function of individuals not being trained well-enough in the overall program’s objectives, and the risks of failing to succeed, to be motivated to perform as expected.

RitterMaps enable more effective training, but they also extend beyond the actual courses, empowering you to retain in front of you a picture of the path forward. Used as a platform against which to customize your program, RitterMaps put everyone on the same page.

A structured change management methodology is critical to implementing significant changes. Studies report that, aside from effective sponsorship, a structured process with tools is the number two contributor to success.[1]

RitterMaps serve as valuable visual tools with which to structure and design the path forward in e-discovery process improvement. The range of depth on different RitterMaps is intentionally designed to enable high-level managers to engage with the process, while detailed structures become functional checklists. The maps are tools—use them beyond the classroom and you begin to leverage your investment in Academy enrollment to an entirely new level.

An effective communications plan, as well as a plan for continually reinforcing to your team members throughout the organization the value of the new processes, are vital. It is stunning that companies invest heavily in educating staff, only to see 90% of the knowledge delivered in the classroom is not transferred to the job, much less transferred from the persons attending the class to their colleagues, supervisors, and others.

RitterMaps are powerful tools for enabling improved communications. Designed to be more than “a picture which says 1,000 words”, our RitterMaps enable you to share with your team members what has been learned—literally putting everyone on the same page!

Our RitterMaps are also there to enable you to do your job better, putting the knowledge acquired in taking a course or lesson at your fingertips. In instructional design theory, these are called “sidekicks”—tools that transfer the knowledge into allowing the learner to do their job.

So, perhaps we are onto something important. E-discovery confronts companies with immense organizational change challenges, with high risks of failure inherent to the process. RitterMaps are much more valuable than colorful artifacts of learning—they can become tools that enable collaboration, improve project execution, facilitate structured processes and empower better communication and better application of knowledge in how people do their jobs!

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[1] See this article on change management planning and the related checklist.

Overcoming an Unexpected Barrier to Training

In the short life of the Ritter Academy, we have uncovered an unexpected barrier to training that, no matter how powerful and effective our content, we must call out in order to find a way to overcome it. Another title for this post might begin “You can lead a horse to water, but. . . .”

A reality we have learned is that professionals are afraid of technology, and that fear is inhibiting their enthusiasm to learn. One young litigator even confessed to me that he was upset he was required to attend training on e-discovery—“I went to law school to avoid all this computer technology stuff.”

Except for the IT professional, many experienced professionals remain quietly intimidated by technology and its implications for how they do their jobs. But, instead of investing in overcoming those fears, they remain largely in denial, believing that someone else can take the responsibility, “cover” what they do not know, or minimize the depth of learning they must pursue.

But in evaluating what could be the “root cause”, we have identified some other factors that may be more responsible than simple fear.

• First, to take a formal class or attend a conference is, itself, an admission you don’t know what others might expect you to know. That can be tough, particularly as individual gains seniority.
• Second, attending a formal class or conference also means suspending the revenue-oriented activities which the professional is otherwise expected to perform. This is a direct cost that makes it harder, particularly in the current economy, to voluntarily select to attend formal training.
• Third, the legal profession was built on a business model which presumed that research, analysis, and mastering the rules for particular matters were billable activities—in other words, ongoing learning was paid for by the client. That is no longer the case—clients expect their team members to know the answers. They are less and less willing to pay for research, particularly on topics that the client presumes the attorney already has mastered.
• Yet, the legal profession’s requirements for continuing professional education, set by each state for its lawyers, are among the lowest for any profession. State rules vary, but the norm is about 12 hours per year. By contrast, medical doctors generally are required to complete 50 hours per year, and even more in some certified specialties.
• In some respects, the low requirements in the legal profession for continuing education are aligned to the business model for billable research—in other words, the bar association need not establish more demanding requirements since, for every lawyer, ongoing research is presumed to be part of any engagement.

So, we know we have built a learning resource that (a) enables a professional to learn at their own pace, without attending formal events, (b) delivers flexible access and control, allowing a professional to learn when doing so minimally interferes with their ongoing job duties, and (c) by using our visually engaging, interactive RitterMaps, rapidly accelerates the transfer of what one needs to learn, thereby making the overall time investment smaller, and more effective.

But how do we overcome the fear of change? How do we make professionals more comfortable with continual learning as part of how they do their job? How do we get experienced professionals to overcome their pride, and embrace learning as a strategy for remaining competitive and valued, particularly as courts continue to impose sanctions on lawyers who display their incompetence in managing electronic evidence for the truth?

I welcome your thoughts and dialogue about this important issue.