Significant Trends: Insights Of Technology Counsel On E-Discovery Trends

Tuesday, April 23, 2013 - 14:12

The Editor interviews Jennifer Yeh, Corporate Counsel at MetLife, and Scott Giordano, Corporate Technology Counsel at Exterro Inc.

Editor: Please describe your respective backgrounds.

Yeh: I am corporate counsel in MetLife’s legal department, where I provide advice and support for pre-litigation, litigation and regulatory matters that arise from the sale of MetLife products. I serve as co-chair of MetLife’s E-Discovery Council, which is a collaboration between our litigation group and our litigation support team. My role is leading the implementation and training for MetLife’s new legal hold application. I also provide litigation advice for company-wide technology initiatives. As part of the Council, we work to refine and develop MetLife’s e-discovery policies, procedures and best practices. Prior to joining MetLife, I was an associate at both King & Spalding and McGuire Woods.

Giordano: As corporate technology counsel at Exterro, I address all issues relating to the intersection of law and technology. This includes working with clients on how best to implement and utilize Exterro’s e-discovery software, as well as researching the market trends, case law and technology requirements that shape the development and marketing of Exterro’s products. Before I joined the Exterro team, I held consulting positions with Mitratech, Fios and LexisNexis, where I spent the bulk of my career.

Editor: E-Discovery continues to be a huge area of risk and cost for corporate legal teams. As such, do you see in-house counsel taking more control of the e-discovery process? If so, how and why?

Yeh: In-house counsel are definitely taking more control of the e-discovery process. We know the company systems and applications much better than outside counsel and are better situated to identify, locate and preserve electronically stored information (ESI). Cost containment is a large part of every in-house counsel’s responsibility. We do this by doing such things as conducting the initial ESI review before providing the document set to outside counsel, by doing productions in-house, by having preferred vendors with whom we can negotiate rates, and by requiring outside counsel to use only those preferred vendors.

Giordano: I would like to add that bringing e-discovery in-house also lets in-house counsel expand internal capabilities. For example, the e-discovery software system can also be used for other in-house legal functions, such as conducting internal investigations and monitoring compliance with regulatory guidelines. This same e-discovery discipline can also enhance other policies that may already exist within an organization, such as those relating to records retention.  

Editor: Please talk about the impact and hype of predictive coding and newer analytic technologies on e-discovery?

Yeh: I think it’s somewhat of a myth that all large companies have litigation that calls for predictive coding. While predictive coding has shown promise, a significant number of cases don’t require the use of predictive coding. We’re focused much earlier in the process so as to eliminate irrelevant documents and make case decisions well before ESI is collected.

Giordano: Our experience has been that while predictive coding and related analytics technologies have proven to be quite useful to in-house counsel, the biggest promise lies in applying them much earlier in the e-discovery process. For example, predictive technologies can be applied in the pre-collection early case assessment (ECA) phase to narrow the ESI funnel, reduce the amount of data being sent to outside counsel for review, and thereby lower overall spend.  

Editor: Why is legal hold emerging as a new “old” issue in e-discovery?

Yeh: Recent case law indicates it’s not enough to just issue the legal hold and think you’ve complied with your preservation obligation. Follow-up after the hold is issued is equally important. If you’re not affirmatively re-issuing holds, monitoring custodian compliance, conducting interviews and collecting  ESI based on their responses to the legal hold notice, then you haven’t really fully complied with your organization’s legal hold obligation.

Giordano: We have seen an endless stream of cases demonstrating the seriousness of legal hold mistakes. And there is nothing in the FRCP or any other statute that requires an organization to establish a legal hold. Yet with the growth of Big Data and higher attention by IT and executive management on information governance, legal holds have re-emerged as an “old” new issue. You can’t get rid of ESI if it’s still subject to a legal action. For this reason, homegrown systems, spreadsheets and emails are no longer sufficient for managing the ESI preservation process. Automated legal hold systems, like Exterro Fusion®, are automating a critical business process and helping in-house legal teams proactively control one of the most important phases of e-discovery.

Editor: You get a letter that may be suggestive of the possibility of litigation and that may trigger a legal hold, and nothing may happen for years. At what point do you decide the hold is no longer necessary? How do you avoid storing those documents?

Yeh: Our e-discovery system helps us have better visibility into our legal holds, so that we know what we have at any given time. Yet, we err on the side of being conservative, and if we have a threat of litigation, we tend to issue the legal hold and keep it in place for quite a while.

Giordano: There have been many cases (e.g., Dell or Zubulake) where the defendants did not implement a legal hold even though they had years of warnings that there was going to be litigation. And while the “trigger” may vary depending upon the facts of the case, the courts are clear – you must save all potentially relevant ESI as soon as litigation becomes likely. This often results in the common, “collect-and-save-everything” approach. One of the most important parts of a legal hold process is knowing when a hold can be lifted and the ESI removed as part of an organization’s regular records retention practices. Automating the hold process will help ensure that ESI can be deleted when it’s no longer needed on “all” matters.

Editor: If a company’s ESI is stored in a cloud, is the jurisdiction in which that cloud is located important?

Yeh: Yes, especially if your company is a multi-national company. Depending on where ESI is stored, foreign privacy laws or blocking statutes could be implicated. It’s important that in your agreement with the operator of a cloud server, those responsible negotiate the ways in which legal can access the data should litigation and e-discovery issues arise.

Giordano: The choice of where cloud servers are located is very important from the litigation perspective. For example, our clients in the EU, especially in Germany and Switzerland, require that everything in a cloud be on a terrestrial server within their boundaries because they’re concerned, and rightfully so, that authorities from foreign nations could otherwise force them to violate privacy laws. A data mapping system designed for e-discovery can help legal teams gain quick visibility into where ESI resides, regardless of jurisdiction.

Editor: Tell us about the new privacy rules being drafted by the EU. What do they mean for discovery of ESI for companies doing business in the EU? What can U.S.-based corporations do to get more involved and familiar with the rule-making process?

Yeh: The proposed EU rules include certain provisions that may likely make it more difficult for the transfer of ESI from the EU to the U.S. for discovery purposes. Of significant importance is that the fine for breaching the new rules is up to two percent of worldwide turnover.

Giordano: U.S. companies must make sure their in-house and outside counsel teams stay abreast of the developments, talk to counterparts in the EU and be prepared.

Editor: What can in-house teams do to truly control e-discovery costs?

Yeh: The best way that we’ve found to contain cost is by first doing an early case assessment of a matter. We work closely with outside counsel, the litigation support team and vendors to get a sense of the volume and costs at the outset and what can be done to contain them. This is important because having lots of irrelevant ESI can create false positives. It’s important to weed these files out before sending them to be hosted by your vendor or for review by outside counsel. We do reviews in-house well before we send ESI to outside counsel. When the volume of ESI is extremely high, counsel may want to partner with a document review vendor to do the initial cut with in-house and outside counsel supervising. Also, having an open dialogue with opposing counsel is really helpful in terms of negotiating search terms, date limits and other parameters. If circumstances permit, it is important to keep channels of communication open among your outside counsel, litigation support team, vendors and their counterparts on the opposing side throughout the life of a case.

Giordano: I completely agree with Jennifer, and e-discovery technology has advanced greatly to support this effort. Being able to proactively conduct early assessments at a high level (data volumes, date ranges, key custodians and ESI accessibility) or dig deeper to unearth case facts (relevant search terms, case facts and potential costs) before any ESI is collected can arm counsel with the intelligence needed to change the course of a case early in the process and drive down related costs.

Editor: What can legal teams do to stay abreast of the latest trends, rules and best practices?

Yeh: Educate yourself by signing up for industry newsletters, blogs and law firm and technology vendors' alerts. They provide great information and insights on dealing with e-discovery issues. Go to e-discovery conferences and meetings of organizations in the field. Most importantly, talk to other in-house counsel, and benchmark what they’re doing.

Giordano: Stay relevant and informed. Exterro offers extensive educational resources for our clients, including webcasts, the E-Discovery Beat blog, a monthly newsletter, conferences, white papers and published articles. All are available on our website at www.exterro.com.

Editor: Scott, Exterro will be hosting its fourth-annual user conference, inFusion13, in September. We understand that this event provides an opportunity for in-house legal and IT professionals to meet and share in-the-trenches experiences about e-discovery and related issues. What are some of the key takeaways that those interested might get from attending?

Giordano: Last year’s inFusion12 served as a great opportunity for our users, in-house corporate legal and IT teams, to see how their peers are applying Exterro’s technology to their own practices. This year’s conference promises even more, covering issues such as cross-border e-discovery, internal investigations and compliance, proactive e-discovery initiatives, Exterro’s technology advancements and much more. The primary thing that sets inFusion apart from other conferences is that it is much more hands-on and interactive than the usual panel presentation conferences. It directly features users of our products sharing their experiences.

Please email the interviewees at jyeh@metlife.com or scott.giordano@exterro.com with questions about this interview.