Electronic Discovery Institute Class 28: Building an eDiscovery Practice and Team

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on August 10, 2018. Go to https://www.lawinstitute.org/ to sign up for it.

The course entitled, Building an eDiscovery Practice and Team, is taught by Scott Milner, an attorney with Morgan Lewis's eData practice; Renee Meisel, a Legal Director for Dell, Inc., who specializes in cybersecurity; and Jennifer Hamilton, an eDiscovery counsel for Deere & Company.

What is an eDiscovery Team?

An eDiscovery team will coordinate with different groups of people within an organization - the legal department, IT, and different business groups. An in-house team can help standardize an organization's approach to electronic discovery so it is defensible and repeatable.

The potential for the same problem to approached in different ways may arise because of the involvement of both in-house and outside counsel on any one case. The eDiscovery team should try to manage the cost of electronic discovery to a business. Hamilton has spent a lot of time with HR and cybersecurity personnel to insure the integrity of data used in electronic discovery Part of her aim is to avoid cross border data privacy issues. She finds that new applications are acquired to replace old ones at a more rapid pace than in the past.

Goals of an eDiscovery Team While a legal department may serve as the institutional memory of an organization, the eDiscovery group can help track the location and use of data over time. Milner emphasized the importance of information governance, which concerns records retention; bring your own device policies; and data disposition policies. Hamilton is often consulted at the beginning of cases about how much certain projects will cost and how long they will take. At the end of a matter, the eDiscovery Team will be responsible for retaining data in case it is needed for another matter.

Meisel noted that the eDiscovery Team can help prepare a corporation's witnesses. A member of the team may actually serve as the company's 30(b)(6) witness.

Hamilton observed that the eDiscovery Team's role has evolved away from educating people about the potential dangerous pitfalls of handing ESI improperly, to emphasizing how the team's function can add value to the organization.

The Roles of an eDiscovery Team

Meisel noted that there is now more of a focus on the left side of the EDRM. Her team has developed specialized tools, and developed methods for keeping track of the location of data.

Hamilton finds that it is a challenge to convince other in-house counsel that expertise in eDiscovery can help them gain an advantage in a case, but won't drive the overall strategy of a case.

The Members of an eDiscovery Team

Meisel finds that the key members of the team are the eDiscovery project managers. Hamilton noted that some companies use paralegals as eDiscovery managers.

Meisel noted she has a lot of 'partners' that she needs to rely on to make eDiscovery happen. IT controls access to data; Records will know where documentation is located and how long it will be retained.

Hamilton's group interacts most often with IT. She coordinates with people responsible for information security, as well as the compliance/business conduct group to make sure that contracts that are entered into include provisions for access to data needed for electronic discovery. She spends a lot of time interacting with groups not directly involved in litigation. Business managers must assist with getting data from people before they move on.

Meisel noted that an eDiscovery team can help support internal investigations, and implement data security policies.

The Role of Technology The eDiscovery Team is instrumental in acquiring new technology and also providing input for the internal team on what tools are best for data analysis. After technology is procured user acceptance studies must be conducted.

The team should promulgate disposition requirements, in order to make sure that data does not sit around indefinitely.

Out-Sourcing vs. In-Sourcing

Technology may be brought in-house for data collection and document review or third parties may perform this work. It may be difficult to justify bringing people in-house to perform eDiscovery when a lot of money is being paid to outside counsel for discovery in general.

Milner has seen an increased demand for national discovery counsel.

Working with Merits Counsel

The eDiscovery team should understand the merits counsel's role, which will be more responsible for making strategic decisions. Merits counsel should have a kick-off call with the eDiscovery team at the beginning of a case. They should also review documentation provided by the eDiscovery team.

Building the Team

A team must acknowledge that a business is not designed around facilitating the eDiscovery process. A leader of team should keep track of pending matters and their size in terms of the amount of data involved.

The members of the team should know the relevant rules and keep up with changes to them. They should be prepared to manage legal holds and optimize the team's standard practices. It is not necessary for every member of the team to have prior experience with electronic discovery. Everyone should understand the overall direction for a case. Technology should allow members of the team to collaborate with one another.

Milner's ideal team member will understand each of the steps in the EDRM. People must be involved who understand the process of project management. Someone should be able to apply analytics to the data that is collected. There is a role to play from a financial perspective - is there a return on the investment?

The team should have good communication skills and not be inclined to always describe a project in technical terms. People with backgrounds in conducting IT audits can be valuable.

What is Success for an eDiscovery Team?

Success can be measured in a number of different ways. Cost reduction per gigabyte or custodian should be a key goal. One should try to track the burden of electronic discovery on the organization. This may be hard to do and it may be advisable to rely on anecdotal information.

Having metrics about how electronic discovery is performed can help with plans for future projects.