First E-Discovery Treatise For Corporate Counsel

Monday, February 1, 2010 - 01:00

The Editor interviews Carole Basri, President, Corporate Lawyering Group, and Mary Mack, Corporate Technology Counsel, Fios, Inc., authors of eDiscovery for Corporate Counsel, a publication of West, a Thomson Reuters Business.

Editor: What is your book's mission?

Mack: The book breaks new ground because it is the only treatise totally dedicated to the specific concerns of corporate counsel. Carole has been immersed in the concerns of corporate counsel for many years and has edited a number of treatises for corporate counsel. She had the vision that we could put together a treatise that would help corporate counsel address the e-discovery challenge.

Basri: Mary is a nationally recognized expert in the law as well as the technology of e-discovery. Her articles in The Metropolitan Corporate Counsel have attracted a huge number viewers to its website. Meeting Mary inspired me to feel that together we could cover even the most complex e-discovery issues.

Editor: What level of detail does the book provide?

Mack: The book is almost 900 pages. There is something for those at every level in a law department. A general counsel can gain a strategic overview, while those within the law department charged with mastering the details can find the guidance they need.

Basri: Because everyone in a law department communicates by e-mail, they need some knowledge of e-discovery so that they know how to avoid inadvertently creating documents that compromise the company in litigation or jeopardize the privilege. The book also helps those directly engaged in the nitty gritty of e-discovery and those who need to deal with IT professionals, outside counsel and third-party e-discovery experts. For those involved in that level of detail, the book builds a bridge so that corporate counsel can intelligently discuss the issues with the experts.

Editor: There are so many terms that are unique to e-discovery. Tell us about the book's excellent glossary and why you decided to put it up front.

Mack: Carole worked with The Sedona Conference® to get permission to use their glossary. I would say about 90 percent of the book's glossary is the Sedona glossary. I also added some additional terms that have surfaced since the glossary was published. We put it up front because we wanted to provide the reader with a nice comfort level before being confronted with acronyms or technical terms of art in the text that follows.

Editor: Perhaps you could give us an overview of the authors who contributed their time and expertise to the book?Basri: We have over 70 authors. Many are corporate counsel, outside counsel and magistrate judges. The role of the magistrate judges, who typically handle e-discovery issues, is so important that we asked a number of them to discuss in the forward to the book what they were looking for in e-discovery. It is useful for anyone going before magistrate judges to know their thinking.

Editor: The book was originally published in 2008. What inspired its republication in 2009?

Basri: Republication was necessary because so much had happened even over the course of a year. We want to keep this book very timely.

Mack: The driving force behind our decision to republish was triggered by the efforts being made by corporate counsel to control legal costs. This has been reflected in the ACC Value Challenge. There is a growing belief on the part of general counsel that the cost of e-discovery has gotten out of hand and that something should be done to limit the abuses that have crept in.

Concerns about cost also reflect the state of the economy and the emphasis placed by some of the more recent cases on being sure that all relevant emails have been produced. On the positive side, The Cooperation Proclamation, promulgated by the Sedona Conference and signed by numerous judges, reflects judges' concerns about situations where one of the parties fails to cooperate to reduce the cost burden in order to extract a settlement. We have several chapters that deal specifically with cost control, both proactive and reactive.

Editor: What about recent advances in technology and new Internet hardware and applications?

Mack: These too are covered in the book. Storing data is easier. Terabytes of data are being fitted into smaller and smaller packages making for greatly expanded storage capacity. iPhones are ubiquitous. The Web 2.0 era has dawned, signaling an increased diversity of Internet innovations like Twitter, and the variety of social networks has exploded. "Mash-ups" have become more common as organizations' websites are merged with others.

People are increasingly working and collaborating with each other inside and outside the organization using electronic software to facilitate that collaboration. This leads to potential evidence being scattered all over an organization and then in pieces on other people's computers. As a result, evidence may also be lodged on other companies' servers, on third-party servers or, as cloud computing becomes a byword, on servers in the sky. So, in-house counsel can't remain mired in the past.

Basri: All those things that Mary mentioned have increased the number of documents that have to be reviewed. Costs have been rising rapidly, with 70 percent of the expense being spent on document review by an attorney. And even if you are talking about temporary attorneys or those located overseas, human brains and eyes don't come cheap.

Therefore, it is of the utmost importance to reduce the number of documents that require human review. I've seen a real growth in technologies that reduce the number of documents requiring human review or that require review by the most expensive lawyers.

Editor: Does the book give the reader insights into the effective use of leading edge technologies?

Mack: Yes. There is a section on choosing appropriate technologies. Machine-aided review has been available since electronic discovery started. And even before that, you might say it went on with human eyes where paralegals may have been doing what they called "word spotting" and then advancing documents to attorneys in which keywords were found. Today, machines are not only searching for key words but can be trained to find concepts that are relevant even though the key words are not used. It is entirely possible that in a few years you could have small teams of attorneys doing an iterative process over and over again, training a machine to a point where it can reliably be trusted to go through many terabytes of data without the need for a human eyeball or brain. That machine is not quite here yet.

Editor: What are the key trends in e-discovery?

Mack: The ACC Value Challenge is now focused on the law firms. In my view, that focus will shift also to include e-discovery providers who will need to provide a careful examination of their responsiveness and the value they provide. If you take the whole ecosystem of e-discovery and you include identification, collection, processing and hosting for review, service providers offering such services constitute upwards of 70 percent of litigation spend. That's a good chunk of a law department's budget. Therefore, corporate counsel will turn their attention to providers. It just makes sense.

Editor: The Seventh Circuit's Pilot Program contemplates the appointment by each of the parties to a litigation of a representative who is knowledgeable about that party's IT system. Do you believe this is important?Mack: Yes. It could be someone from a service provider, law firm or the corporate client. The important thing is that the person, or entity selected, should have a thorough knowledge of the client's information systems as well as knowledge of the e-discovery process. I might add that the Seventh Circuit took a cross-functional approach by including IT people in developing its principles.

Editor: You have been talking about some of the things that are taking place. Do you see any other trends in e-discovery surfacing?

Basri: Groups like Juridica are emerging to focus on the business side of litigation. Rather than emphasizing the cost-cutting trends, particularly around e-discovery, Juridica emphasizes that quality and paying for quality is just as important.

Editor: Does the book also cover compliance and risk mitigation?

Basri: Mary, former Magistrate Judge Ron Hedges and I wrote the chapter in the book about compliance and risk mitigation. Failures to comply with the rules relating to the preservation of records and e-discovery can expose a company and its employees to serious risks of civil and criminal liability. Penalties could result in loss of a bet-the-company case.

Because of the significance of these risks, companies are hiring attorneys with technical backgrounds as well as knowledge of the laws, regulations and practices governing e-discovery to assure compliance and to assist in managing the risks. In some companies, the attorney who heads this effort becomes in effect a company's chief technology counsel who may be assisted by a staff of attorneys and technical experts. The chapter outlines a formal program for creating an Office of Chief Technology Counsel. This would provide greater assurance to the board that all legal requirements with respect to e-discovery are being met. The chapter also includes systematic guidelines based on Sentencing Guidelines for running that office.

Editor: Please describe the book's coverage of the impact of globalization on e-discovery?

Mack: Canada, Australia and the UK are all experiencing more e-discovery. However, over time, every country is going to have to deal with evidence in electronic form. The book includes guidance to what is happening in specific countries. There is information in the book on blocking statutes, the Hague Convention and some practical steps to take when you are before a U.S. judge who may not realize that there may be foreign impediments to disclosure - including alerting the judge early so that you don't risk the ire of the judge because you brought them up at the last minute.

To purchase a copy of eDiscovery for Corporate Counsel, visit: http://tinyurl. com/WestEDBook.

Please email the interviewees at cbasri@yahoo.com and mmack@fiosinc.com with questions about this interview.