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as first published in the LexisNexis® e-discovery Brief
You've been tromping through the desert for days. Your skin is starting to look like a forgotten hot dog on a backyard grill. Parched, you think you could drink a swimming pools worth of water. But somewhere between a glass of water and a thousand gallons, you've had enough. Drink too much and you will simply drown. It's important to know when it is time to say, "That was refreshing. I'm done. Please pass the Solarcaine®."
E-discovery can be like that. Just because technology allows us to create oceans of data -- and gather oceans of data-it doesn't mean we should and it doesn't mean it is in the best interest of your client.
Nationally recognized ED expert George Socha, co-founder of EDRM, moderated a panel at LegalTech® New York 2013 which addressed a number of topics, including the massiveness of e-discovery, the benefits of e-discovery, and the call for more cooperation among litigants.
E-Discovery Should be Celebrated
Panelist Brian Ingram of LexisNexis® Litigation Solutions proposed the session, titled "Improving Client Outcomes with E-Discovery," which Socha kicked off by asking whether electronically stored information can be put to work for clients in a positive way.
Nixon Peabody LLP attorney Jonathan Sablone commented that everyone talks about e-discovery as a pain, a cost center, a burden, but in a lot of ways ED has made discovery much more efficient. "We used to sit in giant warehouses in Houston with giant stacks of boxes for months and months and months reviewing documents," he said. "That still happens, but ED has made the process much more efficient with de-duping, culling, searching and sorting. It used to be you would go to a filing cabinet, copy it and start reviewing. What drives everybody crazy is the volume of data, not the electronic piece. What has ED done for us on the efficiency side? ED has brought us light years ahead of where we were, and it has been a huge benefit in the legal world and for clients. It's something we should celebrate. The challenge for lawyers and clients is how can we deal with the levels of volume and still be able to take advantage of those efficiencies."
Lathrop & Gage LLP attorney Robin E. Stewart said additional concerns come from the multiple data formats and platforms. "When everything was paper there was just paper," she said. "There wasn't much of it and you didn't have the multiple platforms."
"Much of the apprehension with ED is the upfront cost," added panelist Scott T. Lashway, in-house counsel at MassMutual Financial Group. "But companies in large part have themselves to blame.
Companies have been brilliant at storing data without any recognition of why or what they will do with it. I don't think a lot of companies out there are looking at what they are going to do with massive amounts of data on legacy systems, where there are fewer people who have the expertise to work with those systems."
He also expressed surprise that youth and technological sophistication do not always go together. "You would think younger lawyers coming out of law school would have more affinity for the technological challenges clients face," Lashway said. "As in-house counsel retaining outside counsel, one of the things I am surprised by is the lack of sophisticated technology knowledge among young lawyers. I am not seeing the [expected] generational divide between newly minted lawyers who live on iPads versus more senior lawyers who were in those warehouses [reviewing boxes of documents]."
The E-Discovery Gods
As for the expanding vastness of ED searches and requests in litigation, Socha offered one theory, perhaps fueled by fear. Speaking to the two trial attorneys on the panel, Sablone and Stewart, he said, "You are unusual in this in that you come even close to trying a case, but many attorneys don't even take depositions or argue motions. That means they haven't had to make a lot of difficult decisions-especially when it comes to going to trial-that you have to make, [such as] saying 'I have done enough, I am ready to go to trial.' Instead, they keep doing more because the more discovery they conduct the longer they can push off going to trial."
Sablone said it does speak to the reality of litigation. "Eventually, you get to trial, or mediation or a pre-trial hearing. You need to now put some evidence up. You need to put evidence in front of a judge or a jury. What I have seen is this. You have a cadre of people whose life is consumed with- forget the "e-"-consumed with discovery. They talk about terabytes of data. Have they ever put documents in front of a jury? After you get to about 100 documents you just max them out! You are not going to put a case on with a terabyte of data. It just isn't going to happen. You need those 500 key documents in any particular case."
"For me," Sablone said, "it's not about 'how can we push the other side to give us more data?' or 'how we can use search terms or predictive coding or technology to get more?' It's really about narrowing what we've already got to get something smaller. The key, if you want to be efficient for your clients, is that you get what you need to put on a case for your client as opposed to setting loose the ED gods and two years later saying 'I am done and I've got 500 gigabytes of data I am going to produce.'"
Cooperation in Litigation? Have We Met?
Stewart noted the echoing cries for cooperation in discovery. The Sedona Conference is pushing this and it's leaking out into cases, she said. Much of the push for cooperation is coming from theories, she said, not from attorneys who try cases or practice litigation. "You might say we should cooperate and it sounds good, but we're in an adversarial system and so what does cooperation really mean? When the other side asks for 'any and all' documents, am I supposed to just cooperate and give them 'any and all'? You're rarely going to get something like that."
Sablone said the problem isn't really a lack of cooperation, saying that choice of words is misplaced. "The problem doesn't come when we don't cooperate. The problem comes when we don't agree. If we could agree we wouldn't be litigating," he said. Sablone reminded everyone that litigators are dealing with adversaries, so "what you can do with them in discovery is not 'cooperate,' but 'confer' on what makes the most sense for both sides."
"[The word] 'cooperation' implies that discovery becomes a joint endeavor," he said, and that's not the nature of the adversarial system.
Picking up on this theme, Lashway pointed to the recently released ED guidelines in California which go so far as to suggest that each party appoints an e-discovery liaison.
"That is inconsistent with my experience in litigation," he said, "but there can be cooperation among the client, the law firm and the ED specialist. All too often you have people making decisions early on in a case who are not informed on a variety of issues." Stewart and Ingram emphasized the importance of early internal cooperation. Stewart added that internal cooperation must take place in advance of a meet and confer conference so your team is on the same page before meeting with the other side.
• Challenge the mindset that gathering all imaginable documents is essential to presenting a good case that is based on the amount of evidence judges and juries can actually consume in evaluating your case.
• Get your litigation team-the attorney, the client and the ED specialist-together to cooperate on handling data and ED requests well in advance of the meet and confer meeting with your adversary.
• Oftentimes firms and corporations put too much emphasis on the tools and technology. While the tools you select are important, more important is having the proper people and workflows in place to help guide and manage the e-discovery process and make it more repeatable.
• Whether you are outside counsel or inside counsel, review your client's or your corporation's document retention policies to see whether all that data being stored is really just an unnecessary liability.