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How Defensible is Your E-Discovery Process? [Masters Conference Session Report]

This is a near-real-time post from the The Masters Conference, one of the leading e-discovery conferences, taking place in Washington, DC. This session is How Defensible is Your E-Discovery Process? 

Dean Gonsowski, Esq., Vice President of E-Discovery Services, Clearwell Systems
John Loveland, Managing Director, Navigant Consulting, Inc.
Bruce Markowitz, Director of Litigation Support with McKenna Long & Aldridge LLP
Sonya Thornton, Manager, Legal Discovery / Compliance, Sprint Nextel Corporation

Defensibility is not a recipe, it’s a process. What is defensibility? It is based on a “reasonableness” standard for the entire EDD process. Several triggers raise this issue:
1. Preservation: When did you know litigation was likely and what did you preserve.
2. Search: Lawyers cannot just design key word search by the seat of their pants – that’s not defensible.
3. Inadvertent privilege

How Does Collaboration Play into Defensibility? Law firms need to understand client structure and staff and where information resides. To have collaborative conversation – with vendor, client, third party, opposing party – lawyers must understand what data clients have and don’t have and what is reasonably accessible. If collaboration is handled right, it makes process more defensible. Where parties are in agreement, judges rarely will intervene. Of course, reaching consensus is hard. Need to focus on the “end result:” lawyers need to start from what they want to prove and work backwards to search terms and negotiation over process. Then collaborate to try to achieve your desired end result.

Question: In collaboration, how much should you educate opposing side about your data?
Answer: If you don’t educate other side, they will make mistakes and then seek continuances. So it can work against you if your opponent is not smart enough about search and process. Absent education, you face too many iterations. Giving other side a bunch of data that neither helps nor hurts does not serve anyone’s purpose. Doing Early Case Assessment (ECA) helps refine search terms. A collaborative approach to term selection does not give away that much. Not dumping useless data on opposition is probably ultimately more defensible because it is more reasonable.

Question: Should each side give other side the “word wheel,” which is the list of all unique words (aka inverted index)?
Answer: Panelist says this does give away too much. Another panelist took opponents proposed term and gave stats on percent responsive and percent non-responsive. This can get to consensus faster.

Law firms can gain client “stickiness” once they learn their clients’ IT infrastructure and where data are stored. This lowers the cost, makes the process repeatable, and improves defensibility.

Question: How do you define one or more workflows?
Answer: It takes time; at Sprint, it’s taken well over a year to map data, gather retention schedules, assessing which firms really understand e-discovery. Sprint will have distinct workflows for data management based on type of law (e.g., employment v IP). There may be variations, but company starts with a baseline process.

Question: What is responsibility of inhouse counsel v law firm with respect to responding to a subpoena? Law firms may change scope based on less complete understanding.
Answer: Outside counsel is on the hook in court, their license is on the line. So firm has to be very educated about client’s data and the issues in the case. If firm is educated, inside and outside counsel should be very closely aligned in responses. In practice, firms tend to add, not subtract terms. Also, firms need to show what search terms will yield and discuss results (iterate) with the client.

Question: Is there a single, perfectly defensible process?
Answer: Unanimously: no. Need to understand, you can never spend enough to eliminate all risk. Clients should be conscious about what level of risk they are willing to accept. Also, with case law changing, this is not a static question. Lawyers must constantly re-evaluate law, case, and risk level of current process.

Question: Are there specific practices that are an especial danger or risky to defensibility?
Answer: Sprint: one big concern is data mapping. We have 1000s of apps running and to figure out where all data resides is hard. We have created system profiles for various apps: one for judges, one for lawyers, one for the IT staff. These all help define reasonableness. Plan in advance to define reasonableness (e.g., you can’t stop your billing system).
Law firm: what are risks of self-collecting – this depends on nature of case but can be risky. Clients must way costs of self-collection versus vendor collection with the risks of self-collection.

Question: How transparent should collection and hold be? Are clients in danger if they present data collection as a “block box”
Answer: Yes, every judge wants process to be completely transparent. To be transparent, lawyers must be sure to understand how IT, HR, and other departments operate and manage data.