This is an excerpt from an interview published in the May issue of The Metropolitan Corporate Counsel. The editor of the magazine spoke with Jennifer Yeh, Corporate Counsel at MetLife, and Scott Giordano, Corporate Technology Counsel at Exterro about a variety of in-house discovery issues.
Editor: E-Discovery continues to be a huge area of risk and cost for corporate legal teams. As such, do you see in-house counsel taking more control of the e-discovery process? If so, how and why?
Yeh: In-house counsel are definitely taking more control of the e-discovery process. We know the company systems and applications much better than outside counsel and are better situated to identify, locate and preserve electronically stored information (ESI). Cost containment is a large part of every in-house counsel's responsibility. We do this by doing such things as conducting the initial ESI review before providing the document set to outside counsel, by doing productions in-house, by having preferred vendors with whom we can negotiate rates, and by requiring outside counsel to use only those preferred vendors.
Giordano: I would like to add that bringing e-discovery in-house also lets in-house counsel expand internal capabilities. For example, the e-discovery software system can also be used for other in-house legal functions, such as conducting internal investigations and monitoring compliance with regulatory guidelines. This same e-discovery discipline can also enhance other policies that may already exist within an organization, such as those relating to records retention.Jennifer Yeh, MetLife
Editor: Why is legal hold emerging as a new “old" issue in e-discovery?
Yeh: Recent case law indicates it's not enough to just issue the legal hold and think you've complied with your preservation obligation. Follow-up after the hold is issued is equally important. If you're not affirmatively re-issuing holds, monitoring custodian compliance, conducting interviews and collecting ESI based on their responses to the legal hold notice, then you haven't really fully complied with your organization's legal hold obligation.
Giordano: We have seen an endless stream of cases demonstrating the seriousness of legal hold mistakes. And there is nothing in the FRCP or any other statute that requires an organization to establish a legal hold. Yet with the growth of Big Data and higher attention by IT and executive management on information governance, legal holds have re-emerged as an “old" new issue. You can't get rid of ESI if it's still subject to a legal action. For this reason, homegrown systems, spreadsheets and emails are no longer sufficient for managing the ESI preservation process. Automated legal hold systems, like Exterro®, are automating a critical business process and helping in-house legal teams proactively control one of the most important phases of e-discovery.
Editor: Please talk about the impact and hype of predictive coding and newer analytic technologies on e-discovery?
Yeh: I think it's somewhat of a myth that all large companies have litigation that calls for predictive coding. While predictive coding has shown promise, a significant number of cases don't require the use of predictive coding. We're focused much earlier in the process so as to eliminate irrelevant documents and make case decisions well before ESI is collected.Scott Giordano, Exterro
Giordano: Our experience has been that while predictive coding and related analytics technologies have proven to be quite useful to in-house counsel, the biggest promise lies in applying them much earlier in the e-discovery process. For example, predictive technologies can be applied in the pre-collection early case assessment (ECA) phase to narrow the ESI funnel, reduce the amount of data being sent to outside counsel for review, and thereby lower overall spend.
Editor: What can in-house teams do to truly control e-discovery costs?
Yeh: The best way that we've found to contain cost is by first doing an early case assessment of a matter. We work closely with outside counsel, the litigation support team and vendors to get a sense of the volume and costs at the outset and what can be done to contain them. This is important because having lots of irrelevant ESI can create false positives. It's important to weed these files out before sending them to be hosted by your vendor or for review by outside counsel. We do reviews in-house well before we send ESI to outside counsel. When the volume of ESI is extremely high, counsel may want to partner with a document review vendor to do the initial cut with in-house and outside counsel supervising. Also, having an open dialogue with opposing counsel is really helpful in terms of negotiating search terms, date limits and other parameters. If circumstances permit, it is important to keep channels of communication open among your outside counsel, litigation support team, vendors and their counterparts on the opposing side throughout the life of a case.
Giordano: I completely agree with Jennifer, and e-discovery technology has advanced greatly to support this effort. Being able to proactively conduct early assessments at a high level (data volumes, date ranges, key custodians and ESI accessibility) or dig deeper to unearth case facts (relevant search terms, case facts and potential costs) before any ESI is collected can arm counsel with the intelligence needed to change the course of a case early in the process and drive down related costs.
Read the full interview “Significant Trends: Insights of Technology Counsel on E-Discovery Trends" from The Metropolitan Corporate Counsel here.