October 06, 2007

Key Issues Covered at the 4th E-Discovery Conference

I just got back from presenting at the IQPC 4th E-Discovery Conference in Jersey City on the Hudson, a stone's throw from Manhattan. It was a very focused conference on e-discovery issues, strategies, and updates, with the majority of attendees from corporations. In speaking with attendees and service providers there, it's quite apparent that companies are in various stages of litigation readiness with respect to ESI and the new rules. Many are struggling with the massive amount of data sitting in numerous silos, and how to best train their employees in better practices (appropriate e-mail content, retention practices, etc.).

Several presentations provided a number of informative case updates and brought them to life. Perhaps one of the most telling was the effect of the Rambus "shred days" on their patent litigation strategy. Let's face it, some document retention programs may not be so much about retention as they are about destruction. Of course, who wants to admit in a deposition they have a document destruction program. Just ask Rambus. Instead, companies have a document "retention" program. Myself, I prefer to call it ILM (Information Lifecycle Management), which takes into account its dual nature -- keeping the documents you need, and retiring the documents you don't (both paper and electronic), all according to pre-defined schedules and categorization so it's performed appropriately.

Also discussed was the potentially negative effect of labeling e-mails and documents with "attorney work product". While the work product label can provide significant protection, it's a dual-edged sword and needs to be used carefully. By it's very nature, its use infers the attorney was anticipating litigation at the time s/he applied it to the e-mail or document. As such, it would also likely trigger the responsibility to begin preservation efforts across the enterprise to avoid spoliation claims, sanctions, and other adverse results later. When companies routinely apply "attorney work product" to protect communications, they may have inadvertently knocked over the first domino in a much larger preservation and discovery imbroglio.

The value of protecting those communications via "work product" could be negated by the larger costs of preservation noncompliance. This is not a new problem, as this ISBA article suggests from 2004: "The legal counsel of a corporation should consider the dangers associated with writing work product on communications and other documents by weighing the actual benefit received in the form of potential protection from discovery, with the potential danger of triggering an unanticipated date by which evidence may have to be preserved." The new rules and subsequent cases have helped in raising our collective consciousness on the issue. When in doubt, it was suggested at the recent IQPC conference to use "attorney client privilege" instead.

It's clear to me that most companies still need significant assistance in navigating the discovery minefield. There aren't any silver bullet solutions, and there are significant judgment calls to be made. Thus I believe the best approach involves a combination of knowing what you have (for better or worse, but don't ignore it -- what you don't know can hurt you), providing consistent processes, procedures, and systems that make it easier for employees to manage their growing data, and educating/training them on how to do so appropriately.

As we discussed on my panel regarding training issues, however, there is an inherent conflict for most employees: Many want and/or need to retain e-mails and other data for their own benefit. Reasons range from simple work-related needs (e.g. referring to past e-mails, documents, etc. for informational and project-related reasons) to keeping them as the basis for justifying their actions or decisions should they be called into question later. Until companies provide a better way to reconcile these conflicting needs and goals, and more intuitive methods to manage e-mail and unstructured data such as file shares, they will continue to experience these issues.

There were many other sessions on e-discovery issues, including preservation and collection, foreign language challenges, cost management, document review, and more. Although it will take time for companies to more fully address these issues, it's a good sign to see some corporate law departments actively interested in how to get there.

[Update 10/13/07: Ari Kaplan just published his favorable impression of the conference on Law.com. He too liked the intimacy of a smaller, focused conference. He also has some interesting comments on the presentation regarding sourcing trends, and another on automated review. Given that attorney review is likely the most expensive part of e-discovery, automated review is generating a fair amount of buzz.]

[Please Note: This posting shall not be construed as legal advice by the author. It is merely an educational tool suggesting possible points-to-ponder and in no way constitutes legal advice or the author's legal position on these issues.]

Topic(s):   Electronic Discovery
Posted by Jeff Beard