Electronic Discovery Institute Class 27: eDiscovery Boot Camp: Challenges to In-House Teams
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 July 29, 2018. Go to https://www.lawinstitute.org/ to sign up for it.
The course on eDiscovery Boot Camp: Challenges to In-House Teams is taught by Micah Hobbs, a partner with Shook, Hardy & Bacon, LLP, who has represented Pfizer, Eli Lilly and Company, Bausch & Lomb, Covidien and C.R. Bard; Rebecca Lorance, the Legal Director for Litigation at Dell, Inc.; Farrah Pepper, Executive Counsel for Discovery at GE; and Jennifer Swanton, a discovery counsel for Medtronic, PLC.
The Role of In-House Counsel
An electronic discovery counsel not only manages the electronic discovery process as a whole, but performs a variety of different tasks. They help coordinate with other counsel and direct the activities of vendors. Every step of the EDRM involves operational and strategic decisions that must be made by the electronic discovery counsel.
Key Players & Collaborators
In almost every organization, there will be a general counsel, and additional counsel assigned to specialized fields. There will be a mixture of different subject matter experts. A good electronic discovery counsel should support their individual needs with respect to discovery. Project managers are the backbone of a good discovery program. They will make sure that discovery processes are followed. A strong project management team can make sure there is consistency on how electronic discovery is performed on different matters. A discovery counsel should know the case law pertaining to pending matters, and also be aware of recent amendments to the Federal Rules of Civil Procedure.
Collaboration is important for electronic discovery. Employees should understand why they are are to follow certain procedures for data preservation and collection. Corporations that are risk adverse may disinclined to delete data.
Working With Outside Counsel
Coordination is necessary with outside counsel in order to ensure that work is not duplicated. Outside counsel should be able to explain the policies and procedures of their client to the court and opposing counsel. A strong internal team will make sure that policies are actually executed.
The outside counsel can serve as the protector of a company, but there is often a scarcity of skilled discovery practitioners at law firms.
The Costs of Discovery & Cost-Cutting Strategies
Discovery can entail very high costs for a company. However there are many opportunities for cost savings that a legal counsel help implement. Data storage capacities grow each year, and make the process of preservation and collection more difficult. Despite this, Swanton has seen a reduction in e-discovery costs each year for the past seven years. Costs can be mitigated by re-using data. Data doesn't need to be collected from the same custodians each time for multiple matters.
Pepper finds the biggest challenge she faces as an e-discovery counsel to be budgeting for different projects. She stressed the importance of developing friendly relations with a company's finance team. Hobbs finds that costs can be increased if there is a lack of coordination with between counsel on what the issues are in a case.
Swanton finds that a large company, proportionality does not work in her favor. The amendments to the FRCP in December 2015 did not encourage a move to a more proportional kind of discovery. She believes that there will always be at least some disproportionate discovery.
Rule 26(f) Conferences
In-house counsel should know what areas should be discussed at Rule 26(f) conference. Swanton finds that Rule 26(f) conferences are underutilized. She encourages counsel to come into these meetings with a preservation and review strategy. Counsel should not expect everything to be resolved at the meet and confers.
Most large corporations will use contract attorneys for document review. Medtronic uses both U.S. and offshore document reviewers so documents can be reviewed 24 hours a day. It also uses contract attorneys for reviewing hard copy documents, and even manage the scanning process. If the same people are engaged for each project, a team will be developed that has familiarity with a company's data. Good document reviewers should be knowledgeable about the data held by specific custodians.
Out-Sourcing vs. In-Sourcing
Companies don't always outsource all discovery tasks. Medtronic performs some of its own processing. Hobbs noted that out-sourcing allows the use of an existing infrastructure to maximize efficiencies. Third parties can focus on specific steps in the EDRM process.
There has been a lot of consolidation between e-discovery vendors in recent years. Technology should not be selected solely on the basis of its sophistication but on how well it fits an individual's business's needs. In the vendor selection process, it's important to measure the vendors against one another in a RFP process. A Request for Proposal asks for a list of data points. Ultimately there should be a live evaluation process.
The "Electronic Discovery Reference Model"
The focus on the EDRM has shifted to the left. Information governance has become more important. The technology used for review has been also utilized to learn what kind of data a business has.
Building an In-House Team
A defensible approach to discovery should be implemented. There needs to be a workflow and policies, and someone needs to make sure they are followed. These should be continuously evaluated and revised as necessary. The team should have a good understanding of the litigation lifecycle.
Processes should defensible, repeatable and consistent. Trial and error may be necessary to ascertain which processes work for a particular company. It may not be necessary to have a team of individuals that only does discovery, but everyone on the team should understand the nature of discovery.
Future Challenges & Considerations
Discovery is not just the production of email and other data, it concerns reviewing the structuring and archiving of data; systems to distribute preservation memoranda; collecting data from mobile devices and social media sites; and many other areas.
The hardest challenge for an e-discovery counsel may be understanding the company's business and how it uses data .
Goals & Conclusions
The goal of e-discovery counsel is not just to avoid potential sanctions, but to build a defensible program. Determining proportionality concerns and using the appropriate technology may help businesses ease the burden of electronic discovery.
In-house counsel should make use of metrics to judge the efficiency of the programs they implement. These are necessary to build a budget and get additional people assigned to their team.