Ways To Manage E-Discovery Most Effectively

Monday, January 31, 2011 - 01:00

Editor: Please tell our readers about your background at Jones Day.

Fiorentinos: I started at Jones Day's Chicago office in 1987 when it opened and have been there ever since. After becoming a partner in 1994, I became of counsel two years ago. I've litigated across a wide spectrum of civil cases in terms of size and complexity and issues.

I have tried several jury trials as well as bench trials. Once you have tried cases, your natural instinct is to be thinking at all times about how evidence is ultimately going to get admitted and the implication of discovery on that goal.

I became very involved in e-discovery in two ways. I have been a member of the firm's lawyer training committee for a long time, and led the creation of a comprehensive program to familiarize our litigators with the FRCP's 2006 amendments prior to their enactment. In 2008 I was on the planning and presentation committee for the ABA's Annual National E-discovery Institute.

My focus is managing e-discovery to make it not only cost-effective but also substance-effective in the sense of assuring that we truly get to the relevant evidence (especially our own client's) as quickly and as thoroughly as possible.

Editor: What criteria do you use in approaching e-discovery?

Fiorentinos: One of the challenges of electronic data is not to let the potential cost of reviewing it overshadow the ability to reach the relevant information quickly. Nor should the cost itself overshadow the evaluation of the merits. I am a strong believer in using the many sophisticated technologies that exist coupled with the brain power of attorneys to analyze electronic data most creatively and effectively. I don't think a computer by itself can do it, nor will the courts necessarily accept a purely automatic review. Nor do I think we always need to have each and every page reviewed by an attorney. Rather, we can evaluate what the case is about, what type of data exists, which of it is likely to be relevant and how to work our way through it best.

Editor: What is Jones Day's multi-channel, multi-functional approach to e-discovery?

Fiorentinos: I tend to say that Jones Day attorneys are raised to know how to tap into the firm's knowledge and resources. We are very good at not reinventing the wheel. To that end we have set up processes so that any litigator in any office can tap into the firm's existing experience about software options, types of vendors and approaches for collecting, reviewing and processing data, as well as for managing e-discovery whether for the mega-case or the smaller matter.

Editor: Tell us about the Litigation Support team.

Fiorentinos: We have a technical Litigation Support team made up of non-lawyers. It is centrally managed, composed of people with a significant amount of technical knowledge and vast experience in working with document production and interfacing with vendors. They act as the firm's centralized contact point for the technical aspects of e-discovery. In many ways they also act as a liaison between the lawyers and the vendors, and also between the lawyers and the client's IT specialists.

Editor: How does the firm learn about new cutting-edge technologies?

Fiorentinos: In addition to the litigation support teams, in every office we have identified specific attorneys who focus on e-discovery issues. These lawyers emphasize the project management aspect of e-discovery from a perspective that extends beyond what the litigation support team is able to provide. These lawyers are often the ones that vendors approach to introduce new tools. The combination of lawyers having a general understanding of technology options and litigation support having the more technical understanding and experience leads to meaningful decision-making about how to approach e-discovery in a particular case. Part of the secret to cost-effective electronic discovery is knowing how to vet a particular vendor and tool for a particular case. Just about any vendor can put on a successful demo that impresses an attorney or for that matter a client. But that vendor or tool may not necessarily be the right choice for a particular case, which is where our litigation support people play a critical role in helping us understand advantages and disadvantages, often based on the firm's prior use of the technology.

Editor: What factors play a role in your choice of e-discovery vendors?

Fiorentinos: A key factor for us is to be able to present dependable choices based on our vast actual firm experience. We're totally vendor- and software-agnostic - the final decision is driven by the needs of the case and of course rests with the client.

There are also constraints that must be faced when choosing vendors. If you need to be able to collect data from 10 different countries, you need to start with a vendor that either has locations in each of those countries or existing relationships there, and whose tools can handle data in various languages. In selecting the tools you need to win, you need also to think about the kind of case it is. Is it going to be one that has to go to an injunction hearing in a month, or is it one that is going to go on for years and where the analysis will be stretched out over a period of time? Is it an internal investigation where you need to figure out what happened as quickly as possible, or is it a commercial dispute spanning years of business activity where you need to figure out where the relevant evidence really resides? The answers to those questions could dictate whether, for example, early case assessment software and the initial review by more senior litigators can ultimately provide real time and cost savings.

Editor: What is one secret for reducing e-discovery cost?

Fiorentinos: Really understanding that cost is a function of the amount of data - the less that you need to collect to get the relevant data, the cheaper the whole project is going to be. There are a number of ways that you can apply technology to reduce the amount of data relatively inexpensively. For example, a basic short cut may be e-mail de-duplication against custodians and within custodians. But to carry out this shortcut not only do you need to know the technology that can be used to carry it out effectively but you need to know if and when to negotiate its use.

A trend that I am seeing that I think is very positive is that sophisticated vendors are approaching e-discovery as an integral part of records management, and many clients are starting to create more holistic systems for their document retention that in turn can be used for discovery. I think companies of every size will start thinking about this approach as they start realizing the cost savings both for handling their normal course needs as well as litigation needs coupled with the reality that most of their employees are working in paperless or nearly paperless environments.

Editor: Does the firm use contract attorneys?

Fiorentinos: We make use of contract attorneys as much as appropriate. The key to their effectiveness is of course quality control of their work, which often can be best achieved by using tried and tested attorneys. For example, in our Dallas office we have identified contract attorneys who we bring back over and over and who are managed by particular Jones Day attorneys experienced in document productions. This approach permits us to quickly put in place a large team of contract attorneys whom we trust and who know how to work with us.

Editor: What types of training are Jones Day lawyers exposed to in order to equip them to understand e-discovery?

Fiorentinos: We train and update our litigators on a regular basis on the rules and case law. We also have created a project management training program, which has been pushed out to all the offices and made mandatory for litigation associates, that provides extensive hands-on, practical teaching on applying the rules and the technology to the reality of cases.

For the past decade, we have had in place a highly knowledgeable e-discovery committee consisting of attorneys who keep abreast of the latest developments relating to changes in the FRCP and in the state rules. They have historically participated and continue to participate in efforts to shape those rules through various organizations, including The Sedona Conference. We have an effective e-mail mechanism in place for tapping into this group's knowledge and experience.

Editor: What can companies do to minimize the cost of an e-discovery request? What advance preparation is desirable?

Fiorentinos: Companies should periodically review their litigation profiles to assure that they have in place appropriate document retention and creation policies and that the volume and nature of documents created and retained do not present e-discovery burden. If nothing is ever destroyed even though it could be, then if there is litigation, the amount of available data is more than it needed to be. Companies should also periodically review how their employees are using new technologies. If constant texting is taking place by employees, the company may consider taking steps to curb this practice to avoid creation of records that may be subject to discovery. However, some companies may feel that texting is a beneficial tool for their businesses. Thus, they need to determine how to preserve records created by texting so that, if they have to produce text messages, they can do so in a pre-planned and therefore cost-effective way.

Editor: When should outside counsel be called upon to assist companies with respect to collecting e-discovery data?

Fiorentinos: It, of course, depends on the company. Some companies are skilled in collecting e-discovery data and have both the knowledge and the resources to handle many aspects of collection on their own. However, as a general proposition, most companies should involve skilled outside counsel at least to oversee the process because the risk of making a mistake is always there. The fact that data are lost, even if ultimately nothing relevant is lost, can give opposing counsel the fuel for a sideshow that distracts from the merits. Moreover, judges are continuously looking to litigation counsel to be familiar with all aspects of the e-discovery so inevitably outside counsel will need to be educated as to what took place. Early involvement, more often than not, can end up in less rather than more legal fees. Many companies also tend to underestimate the cost of having their own people do it and overestimate the cost of outside counsel and outside vendors being involved.

Editor: What basic advice would you give in-house counsel regarding preparedness for e-discovery requests?

Fiorentinos: In addition to exploring the options about integrated systems mentioned earlier, I think one exercise that companies, especially those not often involved in litigation, can undertake is to do a draft litigation hold notice and outline the steps for issuing it. The exercise of creating an initial draft inevitably will lead to questions that will lead to better knowledge about how the company's electronic data are created and handled, can identify potential problems in advance and can even lead to improvement of practices.

Please email the interviewee at ifiorentinos@jonesday.com with questions about this article.