| |
| |
  |
       |
 |
|
|
|
Feature Stories E-Discovery from In-House Counsel's Perspective by Gary L. Hayden, Ford Motor Company Few corporate law offices have the expertise or resources to perform all aspects of electronic discovery themselves. Therefore, it is likely that in-house counsel will have to seek the assistance of outside counsel and others to perform various functions pertaining to electronic discovery. But if you have never conducted a large-scale electronic document discovery project, or perhaps have no electronic discovery experience, identifying the right outside resources can be challenging. Here are some of the things you can do to help yourself make an intelligent selection. Familiarize Yourself with Your Own Desktop Technology Taking the time to go "under the hood" of common desktop applications, including word processing applications like Microsoft Word or Corel WordPerfect, spreadsheet applications like Microsoft Excel or Lotus 1-2-3, desktop databases like Microsoft Access or Dataflight Software's Concordance, and email applications like Microsoft Exchange, Microsoft Outlook, or QUALCOMM's Eudora can be extremely valuable. Despite the ubiquitous nature of electronic information, the vast majority of electronic discovery still involves production of information from these desktop applications. In addition, knowledge gained from a general understanding of how such applications work and what information is created and available beyond what is shown on the screen is transferable to many other computer applications. For example, looking at the meta data associated with a Word file or the transactional information that accompanies emails will provide you with information that will be valuable when you must inquire about other types of computerized information sources. Appreciating the fundamentals of basic relational databases will give you a huge head start toward understanding how data is created, manipulated, and stored in much larger enterprise database applications. Spend Time with Techies Discovery in the electronic age still involves identifying the information creators, but it now also necessitates in most instances identifying the people responsible for maintaining the electronic information: database administrators, webmasters, and hardware and software maintenance personnel. Often, users do not even know where data they have created or used is stored, and even if they do know where it is, they may not know how to retrieve the data other than through standardized reports. You will need to rely on IT professionals to help you find the data, retrieve it in a manner that preserves the integrity of the data; and, ensure that the data—once retrieved—is presented in a usable form, consistent with the requirements of the rules of civil procedure in virtually every jurisdiction. Read, Ask Questions, Read Some More There is a vast amount of information publicly available on the subject of electronic discovery. One very good source is www.kenwithers.com. Applied Discovery and other e-discovery experts stay current on developments in both the law and technology, and are excellent sources of information. There are also a number of Internet-based groups that share information on electronic discovery and regularly engage in online discussions of various issues. Try the "litsupport" group at Yahoo!. Technolawyer.com is another good site for information. Make a Plan and Stick to It Advance preparation is important for three reasons. First, if you have identified sources of e-discovery and developed a plan for efficiently and cost-effectively retrieving, reviewing, and producing e-discovery, you have a much better chance of avoiding turning an e-discovery skirmish into a full-scale war. Second, if you are unable to avoid a dispute, detailed knowledge of the sources of electronic information in your company and the burdens associated with production of electronic discovery can be extremely helpful in convincing a judge to fashion a reasonable compromise. Finally, if you are required to undertake a major e-discovery effort, time and money spent in advance preparations will usually be returned multi-fold in cost avoidance during the actual discovery effort. The cost of rework, which is inevitable without detailed advance planning, is astronomical; the rule of thumb I have heard is that the cost of rework is roughly seven times the cost of the initial effort. This Is Where the Outside Partners Come In Advance planning is where companies can often benefit most from the use of outside consultants, including law firms who have practice groups devoted to this area of the law and companies who specialize in computer forensics and e-discovery. The specific needs of every company are unique, but there are general principles that apply in all electronic discovery projects. Taking advantage of the expertise of lawyers and experts who have gone though electronic discovery wars with other clients in the past can streamline the process greatly, reducing time and overall cost. Just as requesting parties have their checklists of information to be obtained, law firms who have represented other companies in defending against unreasonable electronic discovery demands and electronic discovery service providers can use information gained through previous engagements to help corporate clients avoid rabbit holes and wild goose chases, and focus their efforts and resources on the most important tasks. How Do You Select the Right Partner(s)? The field of players in the electronic discovery arena today is large and growing by the day. Not very many years ago, there were a handful of visionary companies that offered a relatively limited number of electronic discovery services. Over the past several years, though, several developments have occurred. A number of brand new e-discovery companies have emerged, some as the result of former members of the original firms seeking greener (as in the color of money) pastures. Other companies who were formerly in businesses related indirectly to e-discovery, such as imaging and coding of paper documents, have expanded their offerings. In addition, two new phenomena have emerged in the law firm sector. Several firms have developed technology subsidiary businesses that offer e-discovery solutions. The North Carolina-based firm Womble Carlyle Sandridge & Rice, PLLC is one example. Other law firms, such as Mayer Brown Rowe & Maw, have created a separate practice group of lawyers whose practice is devoted nearly entirely to electronic discovery-related matters. These firms may have internal technical expertise that the lawyers can draw upon, or they may associate with electronic discovery service providers. Do you need to hire a firm that has electronic discovery as a specialty area? Probably not, but your decision depends on several factors, including the urgency of your need, the complexity of your IT infrastructure, and the nature of your litigation. If you have an extremely onerous order to comply with in a limited amount of time, you will probably not have the luxury of being able to work with a firm that would require a long learning curve to become proficient in e-discovery. On the other hand, if you are systematically developing a plan for complying with ongoing e-discovery demands, and you do not have the time pressures associated with a court order, you may elect to work with a firm that is more familiar with your client and its business but is perhaps not an expert in e-discovery matters. You will need more technical expertise if your client has a network of thousands of servers, thousands of databases, and tens of thousands of PCs distributed worldwide than if your client's IT system is smaller and more centralized. Repetitive, "pattern" litigation will also create needs for outside resources different from the needs for individual, "one-off" cases. Understanding the unique needs of your client is the essential component to selecting the right outside partner or partners. That, in turn, requires a basic understanding of the principles of e-discovery, and at least a general, high-level plan for compliance. Internal partnering with IT professionals and business people must precede external partnering. No matter how hard they may try, the in-house lawyer will never have all the right questions to ask prospective outside partners, and they should not try. Instead, the in-house lawyers must work with their internal colleagues to develop the basic e-discovery plan framework, in the context of which the evaluation of prospective outside partners will be made. These internal partners should also participate actively in the evaluation and selection of the outside partners; I can virtually guarantee that a critical technical or business consideration will be missed if they are not.  Gary L. Hayden is Counsel and head of the Discovery Group in the Office of the General Counsel of Ford Motor Company. His group is responsible for preparing discovery responses in nearly all of Ford's litigation. |
|
|
|
|||||||||||||||
| Home | About Us | E-Discovery Services | Law Library | Client Resources | News & Events | Discover A Better Way | Contact Us |
| Copyright © 2008 Applied Discovery Inc. All rights reserved. Terms & Conditions | Privacy Policy (Safe Harbor) |
 | | |
 | Litigation | |
 | ||
| Antitrust - Second Requests | |
| ||
| Corporations | |
| ||
| Consulting | |
| ||
| The Applied Discovery Difference | |
| ||
| Client Success Stories | |
 |
||
|
| |
|
Case Summaries | |
| ||
|
White Papers | |
| ||
|
Court Rules | |
| ||
|
Articles | |
| ||
|
Model Orders & Sample Documents | |
| ||
|
Newsletter | |
| ||
|
Subscriptions | |
|
||
