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Live Blogging at Georgetown's Advanced E-Discovery Institute: Day #2 -- The Evolving Role of eDiscovery Counsel

Created on December 7, 2012

Date/Time: :815 - 9:30am (EST), Friday, December 7, 2012
Participants: Moderator -- James L. Michalowicz; Panelists -- Katherine Bertini, David Chaumette, Madeleine McDonough, Michelle Spak
Session Description: The Evolving Role of eDiscovery Counsel

This session discussed the role that e-discovery counsel plays throughout the discovery process. The moderator presented five questions to the panelists. The panelists were split up into teams, in-house counsel (Katerine Bertini (UTC) and Michelle Spak (Duke Energy) and outside counsel (Madeleine McDonough and David Chaumette). A lively and great discussion ensued that compared/contrasted perspectives between these two groups.


The chief role of e-discovery counsel is...

From Outside Law Firms:

  • Be the middle man between IT and legal
  • Ensure full compliance, both legal and ethical obligations

From Inside Counsel:

  • To meet discovery obligations and defend the process: Have the right people and resources to support a detailed process
  • Create a collaborative relationship with all stakeholders in the e-discovery process: This will help ensure that preservation, collection and review is done cost effectively and defensibly

The case law from this past year that has the most effect on my role as e-discovery counsel is....

From Inside Counsel:

  • Any case involving sanctions: Helps keep them aware about how to continue to constantly improve their e-discovery process (what not to do).
  • Chin v. Port Authority: Clarity surrounding the corporate liability for the failure to properly preserve evidence

From Outside Counsel:

  • Predictive coding cases: Explain in part how to efficiently and defensibly delete data that you don't need (on a case specific basis)
  • Local rules promulgated by courts: Local rules beyond the federal level are starting to change to take into account e-discovery issues

The skill most needed to be successful as e-discovery counsel is...

From Inside Counsel:

  • Management through practicality: Assess the allegations of the case and narrow down what discovery should be done that effects that specific case. Remember to ask yourself "what is really relevant?" Will lead to the narrowing of the scope of discovery and thus will cut costs
  • Ability to manage and explain the discovery process

From Outside Counsel:

  • Ability to collaborate with everyone in your organization from IT, business units, HR, records management,etc.: Everyone in the organization is in it together
  • Management - inside and outside the organization: management inside an organization needs to take an active role within relationships within the e-discovery process. Without management it can lead to missing documents and passed deadlines

The one piece of advice you would give to a client as e-discovery counsel would be...

From Outside Counsel:

  • Critical to engage others: Must talk with opposing counsel to identify uniform discovery parameters
  • Set the agenda in the case: Create a reasonable plan to the court, remember to utilize protective orders, and don't overlook missed opportunities in 26(f) conferences to start narrow down the potential discovery collection parameters which is usually most effective in phasing

From Inside Counsel:

  • Maintain detailed records for defensibility (record of collected, culled down, why didn't choose certain custodians, etc.): This enables attorney to adequately defend themselves
  • Be prepared and have an e-discovery plan: Designate an e-discovery counsel who can get things accomplished within a corporation, in the best case scenario have an enterprise level plan

The biggest change in my role as e-discovery counsel this past year has been that I now need to....

From Inside Counsel:

  • Implement an internal e-discovery program: bring in a tool in-house but it needs to be the right tool, with the right people running it and the tool must be leveraged
  • Be more hands on as work is shifting more in-house

From Outside Counsel:

  • Know how companies are using social media (think beyond email) - must do custodial interviews to identify how custodians are utilizing social media
  • Never let discovery take a life of its own (try and efficiently manage multiple vendors (service providers, outside counsel, etc.) over multiple projects
E-Discovery Beat's Key Takeaway

E-Discovery is a very complex, fragmented, time consuming process that involves multiple moving parts over multiple teams inside and outside an organization. To help address this complicated process, corporations are seeking help from experts in e-discovery, such as e-discovery counsel to adequately comply with the FRCP and the courts. From both the outside law firm perspective and internal corporate law department, communication, education and collaboration are paramount factors to create the transparency and repeatability needed for a defensible e-discovery process.