E-Discovery practitioners representing some of the largest companies in the United States have converged in Oregon for inFusion12, Exterro’s third-annual user conference. The two-day event began with a pair of interactive panel discussions on bolstering defensibility and reducing e-discovery collection volumes.
A major theme of the opening session on e-discovery defensibility was the importance of communication. Attorney James Daley, partner at Daley & Fey, said that defensibility starts with establishing a carefully documented record of events that will persuade the court that the client has taken reasonable steps to meet its e-discovery requirements.
Session moderator George Socha, co-founder of EDRM, shared a story from his work as an e-discovery expert witness to help underscore the importance of documentation. He was asked to compile a report for a client company to help prove that they employed a reasonable process when responding to an e-discovery request. Unbeknownst to him, there was hardly any written record that helped verify the company’s process. Instead, they relied mostly on phone calls and in person conversations to communicate project details. Socha was forced to conduct several interviews across multiple states and rely mostly on people’s memory to piece together events, which severely compromised the company’s ability to demonstrate defensibility to the court.
Joining Daley on the panel were fellow attorneys Jenny Hamilton, global e-discovery counsel at John Deere & Co., and Erin Pope, assistant general counsel at Golden Living. The speakers agreed that a hallmark of defensibility is being able to show the court what steps were taken at each stage of the process and, more importantly, why they were taken. Hamilton said a good way to avoid the time consuming and inefficient e-discovery “email hunt” that typically follows an e-discovery dispute is to develop and then follow well-documented processes and workflows that can be applied consistently across matters.
Another value of communication, Pope explained, is educating others on the e-discovery implications of certain business activities. Her company, healthcare provider Golden Living, has to grapple with a number of regulatory issues, many of which impact her role of managing and directing the company’s e-discovery efforts. She said a big part of her responsibilities is helping people understand legal risks. She offered the example that something as seemingly harmless as a member of the marketing team promoting the company’s services over social media can lead to problems down the road if risks aren’t well communicated ahead of time. Likewise, Hamilton has made it a priority to send out regular emails to John Deere employees informing them of issues that may impact the company’s legal exposure and providing them with tips on how to mitigate legal risks.
In the second session, a panel of experienced e-discovery experts discussed ways in which companies can reduce data collection volumes. Moderator Greg Buckles, analyst with eDJ Group, set the stage by explaining that because so few cases actually reach trial, it is essential that the relevant information is found at the earliest stage possible so counsel can make an informed decision on case strategy before significant costs have been incurred. He argued that the traditional model of collecting data indiscriminately when a matter arises is no longer viable in the world of big data. Where cases used to involve 2 or 3 GB of data, he explained, they now frequently involve more than 20 GB and the costs and time it takes to go through all that information can be crippling.
Panelist Bennett Borden, chair of the e-discovery and information governance practice group at Williams Mullen, echoed Buckles’ point, explaining that many organizations rely on the backwards e-discovery strategy of collecting very broadly and then spend millions of dollars to find the small percentage of documents that are actually relevant to the case. He said it’s far more sensible to leverage the latest technologies and establish processes that allow for the identification of that small population of relevant documents right away, prior to collecting all the junk.
Tom Mullane, e-discovery specialist at United Technologies (UTC) said that one of the ways his company has managed to achieve more targeted collections is through detailed custodian interviews. By leveraging custodian knowledge, UTC’s e-discovery team is able to hone in on the truly relevant electronically stored information (ESI) and significantly reduce the overall collection volumes. According to Mullane, a major challenge at UTC, a large, geographically dispersed company, is accounting for custodians who may have left the company or changed positions while on active hold. While the speakers agreed that there is no silver bullet solution for dealing with that challenge, it helps to tie the company HR system into the e-discovery technology ecosystem so that changes in employee status are brought to the attention of the discovery team immediately and can be promptly dealt with.
The panel, which also included David Yerich, e-discovery director at United Health Group, mentioned that the notion of targeted, proactive collections scares a lot of companies because of fear that something will be missed. They said risks can be significantly mitigated if the targeted collection approach is coupled with broad preservation practices that enable follow up collections when necessary.
The first day of inFusion12 provided some great discussion on a variety timely e-discovery topics and day two offers more of the same, with sessions on applying a platform approach to e-discovery and best practices for responding to regulatory inquires and audits, among others.