General Counsel Take Note: The E-Discovery Process Continues To Evolve - Part I

Friday, August 1, 2008 - 01:00
CPA Global
LexisNexis Discovery Services
Brandon Daniels
Edward H. Rippey

Editor: Would each of you gentlemen tell our readers something about your professional experience?

Rippey: I am a partner at Covington & Burling and practice general and patent litigation. In addition, I head the firm's e-discovery practice group.

Daniels: Prior to CPA, I worked with corporations and law firms consulting on and managing large e-discovery matters. As a legal process consultant with CPA, I organize legal offshore operations for clients and help them with their e-discovery issues and legal strategy.

Hellewell : I am a senior director at LexisNexis Applied Discovery, where I advise corporations and law firms on a variety of e-discovery issues. Prior to joining Applied Discovery I practiced at Skadden, Arps, Slate, Meagher & Flom, where my work included counseling clients on e-discovery cases.

Editor: Mr. Rippey, as a litigator what recurring e-discovery issues do you encounter with your clients?

Rippey : Most litigation that I handle involves large companies, including Fortune 500 enterprises, that are not strangers to litigation. There are a few recurring themes with this type of client. First, they increasingly expect outside counsel to have a real core competency in electronic discovery and all issues that may arise in the discovery process. This was not necessarily the case a few years ago. Then, discovery costs were going through the roof. Among the reasons, I believe, was an absence of expertise in this area on the part of many practitioners. Clients have become smarter in this regard over time, and a proficiency in e-discovery is now expected. Second, these companies are looking for someone with familiarity with the amended Federal Rules of Civil Procedure and the relevant case law. This kind of expertise, they believe, is necessary for a litigation matter to be handled in a cost-effective way. While not everything is driven by cost, the concern for cost informs nearly every decision that a company makes in connection with e-discovery best practices.

Editor: What measures are clients taking to drive down the cost of litigation? Are any of them risky?

Daniels: There are a number of ways that clients can drive down cost, and, yes, some of them are risky. For example, a company might have a hundred distinct custodians of documents, and collecting from all of them might be unduly burdensome. But, collecting from only half - in an effort to contain cost - might result in serious discovery disputes down the road. Or suppose a client wishes to self-collect rather than retain a law firm or legal service provider to collect documents. That might result in a short-term savings on the cost side, but it may not meet the standards required by law. Increasingly, we see situations where companies and law firms are being held accountable for deficient collection and production efforts. If a company is trying to limit costs by decreasing the volume of its production, almost by definition it is increasing some sort of risk in the litigation.

Editor: All of you have been involved in e-discovery matters. Do you see the volume of data increasing, or are clients finding methods to effectively cull the amount of data that is reviewed?

Hellewell: The volume of raw data we see in projects continues to grow. Storage is cheap, and increased awareness of e-discovery obligations and the recently amended Federal Rules of Civil Procedure all contribute to a rise in the volume of raw data identified as being potentially relevant in cases. At the same time, we are spending more time working with clients to find more effective ways of reducing the amount of raw data that actually requires attorney review. The good news is that the technology for culling and reviewing data is improving, and clients are becoming more adept at using it.

Daniels: Just recently I spoke with a client planning to institute a policy to automatically delete material on a routine basis as part of their data destruction practices. The implementation of such a policy has the obvious effect of decreasing the amount of data available when it comes time to respond to a discovery request. This may seem like a reasonable solution, but it also could lead to a situation where a recent email, or some other document, would benefit from past evidence, and because of a rigid destruction policy that evidence is no longer in existence. The current documentation is left to stand alone, and the client may be in a much worse situation than would be the case had it been able to call upon the now destroyed evidence. There are no easy answers here. It seems to me that certain information must be kept in order to provide for business continuity. A routine deletion program may serve to do more harm, and put the company at greater risk, than having counsel or some other consultant advise on the materials that can be safely eliminated.

Rippey : The deletion of information is a very tricky business. Last summer, we handled a trial for a technology enterprise. At the end of the trial, the company decided to revisit its document retention and document deletion policies and begin deleting information in a more aggressive way. A day and a half after having made the decision to revise its policies, the company was named as a defendant in another lawsuit. The window of opportunity - when the company had free rein to recalibrate its policies - was fleeting. The point, I think, is that many larger companies have ongoing litigation, and in these circumstances it is very difficult to modify their document retention and deletion policies in a way that brings this matter under some degree of control.

Hellewell: This is something we see clients struggle with frequently. Everyone would like to reduce the volume of documents subject to litigation. There are some things clients can do that are pretty straightforward. For example, more companies are analyzing the costs and benefits of maintaining extensive collections of backup tapes. We've seen clients who maintain backup tapes going back many years hit with extensive restoration and processing charges when this information is requested in e-discovery cases. Ironically, there are times when clients realize their backup tapes, while requested often for e-discovery purposes, are rarely or never used for disaster recovery purposes - the very reason the backup tapes were implemented in the first place.

Editor: Are there risks associated with using technology to reduce data volume?

Hellewell: There are a number of established data culling methods that have been available to lawyers for a long time, including: culling with key words; by date; by file type; and by the de-duplication of data. In recent years more aggressive methods have also emerged. We are all intrigued by the prospect of technology or algorithms that can creep through raw data and identify documents relevant to a particular case. However, we advise clients to be cautious in implementing this approach without fully understanding the underlying technology and its limitations. We believe that advanced culling and conceptual searching technology is promising, but it has varying levels of acceptance within the legal community. Even more established culling techniques, such as key word searching, can be risky if lawyers over-rely on them or attempt to use them as a substitute for an actual review.

Rippey: It is important to remember that perfection in the collection and production of information is not required, and this is true across the entire spectrum of electronic discovery. You are not required to unearth every single document that might conceivably be relevant to the litigation. What is expected - and this relates to your question about defensibility - is that your approach to collection and production will be sufficiently sound and thorough to enable you to stand up in court, explain what you have done, why it is reasonable in the circumstances, and why requiring anything else would be unduly burdensome and unfair. This rationale must be developed and thoroughly thought through before an attorney is standing in court and facing a motion to compel. Defensibility is very much dependent upon taking a proactive approach to the methodology used for collection and production.

Editor : How much disclosure to opposing counsel is too much? In other words, when do methods for culling, processing, reviewing, and producing data evolve from negotiating tools into work product?

Rippey: This is a tricky issue at the moment. Under the amended Federal Rules of Civil Procedure, counsel are expected to pay early attention to discovery disputes and to the electronic discovery issues that can be resolved upfront. Basically, courts are telling the litigators that they require them to address, and resolve, these issues at an early stage in a litigation matter so as to avoid burdening the court with motions practice.

There are both upsides and downsides here. Most lawyers instinctively back away from voluntarily disclosing to opposing counsel what is available in discovery, but there is no question that there are benefits to negotiating all search terms at an early point and developing an upfront electronic discovery stipulation. For starters, you are saving your client a great deal of time and money by avoiding going down the path of briefing and arguing a whole array of e-discovery disputes in court. Cutting the other way, however, is the fact that the more of your process that is voluntarily revealed to opposing counsel, the more you are revealing potential work product. I mentioned having to stand up in court to explain why you believe that a destruction or retention practice is defensible. Well, you can rest assured that if your opponent knows what you have done with respect to your client's discovery policies, they are going to be able to identify weaknesses in your approach.

I think there is a real tradeoff in terms of pro's and con's. A good approach is to conduct the initial conference with counsel to decide the subject matter on which you agree, and to forget anything that cannot be made to fit within the stipulation. In other words, it may not be prudent or strategic to deliver information to the other side where there is no necessity to do so.

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