Live from the Georgetown Advanced e-Discovery Institute – Part 1

This year, the Georgetown University Law Center is holding its 7th Annual Advanced e-Discovery Institute in Arlington, VA. The line up of speakers includes a who’s-who of e-Discovery in the U.S., including the Hon. Paul W. Grimm (Victor Stanley) and the Hon. Shira A. Scheindlin (Zubulake and Pension Fund).

The topics discussed on the first day ranged from a review of e-Discovery rulings in 2010 (at last count, there were over 250 cases this year with specific e-Discovery rulings), Proportionality, the Business of e-Discovery, and a compelling discussion about International e-Discovery.

The first session was a roundtable discussion by six judges. It was generally felt that this year could easily be branded the year of e-Discovery sanctions. While the number of sanctions related to e-Discovery negligence was not great (the four most well known were Pension Fund, Rimkus, Southern New England Telecom and Victor Stanley), the number of cases where sanctions were considered has increased dramatically. Other topics included cooperation, proportionality, obtaining ESI from outside the U.S. and obtaining ESI from third parties (particularly ESI hosting vendors, i.e. the cloud).

A session on the nature of the e-Discovery industry was extremely interesting. The panel and audience agreed that in-sourcing e-Discovery will continue, but will in all likelihood not become the norm. While e-Discovery software certainly makes in-sourcing easy enough, the big stumbling block was viewed as the lack of sufficient qualified people to perform the work. Most of the session centered around the question of whether the market can deliver “cheap and correct” e-Discovery. The general consensus was that the status-quo will continue until the decision makers realise that e-Discovery is as much an IT process as it is a legal process.

Although it wasn’t discussed in any great detail due to lack of time, one forecast of the e-Discovery landscape in 2020 was that it would no longer exist. Of course, discovery would still be around, but by 2020, organizations would have a good handle on the management of their records, and the documents needed for litigation would be available at the click of a mouse…assuming mice are still around in ten years!

Tomorrow’s discussions look to be just as interesting. Stay tuned for part two of this special blog report.

To In-source E-Discovery or Not – A Series of Corporate Questions

Since e-discovery is clearly here to stay, should its processes be handled internally or outsourced, or a combination of the two?

Many of Wortzman Nickle’s corporate clients are facing this dilemma. Finding the right answer is not simple, requiring a combination of legal and technological experience, plus top-down/bottom-up corporate initiatives.

The bottom line? Get everyone speaking the same language (not an easy task) and ask lots of questions, including the following:

1.         What is the volume of litigation in the corporation – can the expense of additional technology and perhaps staff be justified?

2.         What e-discovery expertise do existing in-house counsel and staff have?

3.         Who is available to project manage the e-discovery processes as well as any technology purchased for in-house use?

4.         Are there people in-house with an ability to stay current with legal developments and new and emerging technologies?

5.         How is employee productivity going to be impacted?  Legal and IT professionals, despite having e-discovery expertise, may be too busy to take on the entire process on top of regular responsibilities.

6.         What e-discovery expertise does external counsel possess?

7.         What technology will best work with the existing IT infrastructure?

8.         Does the corporation need an “end to end” solution to manage preservation,  identification, collection, processing/culling, review and production of records, or will some aspects of the process (ie. processing and/or lawyer review) be outsourced depending on the file?

9.         Will the solution you are contemplating allow for valuable software add-ons when required, such as concept-clustering or near de-duplication software, which may significantly simplify and reduce the costs of the lawyer review stage?

These questions all require careful consideration.

Selecting the right technology solution is central to the decision-making process. Many of our clients are reporting that they are overwhelmed with options, receiving numerous calls per week from forensic and e-discovery vendors wanting to pitch their in-house e-discovery solutions. 

How to best navigate these calls?  Wortzman Nickle can assist you. We are speaking with many of these companies to better understand the strengths and limitations of the various products and where they fit into the EDRM (Electronic Discovery Reference Model).  One cautionary consideration: an “end to end solution” may not be what it appears, so ensure your terminology is clear and evaluate your options carefully.

In the end, there are many solutions available. For some corporations, some aspects of the e-discovery process can be effectively managed in-house, while other processes may be better outsourced, depending on the litigation. Mostly commonly, it is a hybrid of the two that works best for most companies – providing both the stability and cost-effectiveness of in-house capabilities with the flexibility to apply new technologies as required.  One size does not fit all.