A white paper written for and released by RenewData in May 2007. {NEW}

Introduction

Discovery was once a litigation side show. Today, it has moved to center stage. The December 2006 amendments to the Federal Rules of Civil Procedure together with explosive growth in digital data have forever changed litigation. E-discovery is complex, expensive, and error-prone.

Meeting the modern e-discovery challenge requires new resources. The legal profession is developing best practices for data collection and review based on experience, new technology, and the accumulating body of case law. Staying on top of the many legal and technical developments is hard. In fact, doing so may be a full time job.

A recent trend among leading firms is to create the role of an e-discovery attorney or practice. In some firms, a senior lawyer or an entire practice specializes in electronic data discovery (EDD or e-discovery), assuring the firm and clients that the e-discovery process is efficient and effective. This article examines four reasons why law firms should consider appointing an EDD Attorney

Four Reasons to Have a Lawyer or Practice Focus on EDD

Build the Right Team to Handle a Complex Problem

Full service litigation practices need many resources to manage e-discovery. Until recently, most firms relied primarily on litigation support departments to find and manage those resources. When discovery was paper-based and the rules simpler, this worked well.

With new discovery rules and ever-changing technology, a deeper collaboration between practicing lawyers and technology experts is essential. To assemble and manage the team, firms need the right skills and experience. Some traditional litigation support professionals excel in this role. A new approach, however, appears to be emerging as firms “add horsepower” to this function.

Some firms have non-practicing lawyers with extensive managerial experience as “Directors of Practice Support.” Though the title and role originally encompassed a range of functions (e.g., knowledge management), litigation demands often mean that these Directors focus mainly on e-discovery.

Other firms have taken a different path in what may be the harbinger of a new model. They have created a role for an attorney to focus on EDD or formed EDD practice groups. For example, in 2005, Sullivan & Cromwell appointed Thomas Barnett as Special Counsel to address discovery and regulatory compliance issues. One of Barnett’s first tasks was to augment the firm’s existing capabilities. Says Barnett, “Although we had an excellent litigation support department when I arrived, I found that the growing demands of e-discovery required that we augment our capabilities. I hired project managers and technical experts who could help our clients complete effective and efficient electronic discovery.” Today, Barnett spends one-third of his time managing a group of technical experts, project managers, and other specialists focused on e-discovery.

Master the Intersection of Law and Technology

In large law firms, the age of jack-of-all-trades is over: both lawyers and staff increasingly specialize. For example, transactional lawyers rely on tax or environmental specialists and firms hire dedicated professionals for functions such as marketing and CLE. Similarly, e-discovery is now complex enough that it too requires specialization.

Three trends drive e-discovery complexity and the need to specialize: (1) the growing number of published discovery decisions; (2) rapidly evolving technology to collect, process, and review e-data; and (3) corporate efforts to manage records more effectively in response to new compliance requirements and the prior two trends.

To stay on top of these trends and master the domain, lawyers must invest the time to learn the ins and outs of e-discovery. Laurie Weiss, a partner at Fulbright & Jaworski L.L.P., co-leads her firm’s E-Discovery and Information Management Group. She explains the international firm has made a significant commitment to the practice, which also supports Fulbright’s internal litigators in complex matters involving EDD issues and serves as national e-discovery coordinating counsel for clients with multi-state litigation.

Weiss notes that the translation between law and technology is key. “E-discovery lives in the space between law and technology,” she said. “And mistakes happen in that vacuum. Our e-discovery and information management practice is working to fill that vacuum.”

Another large law firm, Hughes Hubbard, formalized their e-discovery practice last year, drawing upon their many litigators with substantial discovery and technology experience. Charles Cohen, a partner who co-chairs the Group says, “e-Discovery issues present great challenges and great opportunities. With experienced lawyers directing EDD and paying close attention to developments in the law, we are able to seamlessly integrate discovery strategy with litigation strategy to better serve our clients’ needs.”

All litigators must be familiar with EDD basics but forward-thinking firms make this someone’s job. By developing deep specialization, firms can avoid falling into the “gap.”

Develop EDD Best Practices to Minimize Risk and Make Life Easier

Yogi Berra once said “we made too many wrong mistakes.” That turns out to be good advice for e-discovery. There may not be a single right way but there are lots of ways to make “many wrong mistakes.”

Mistakes can be costly: sanctions, adverse inferences, and bad press. Smart firms take steps to minimize the chance of mistakes. The typical litigator has little time to focus on EDD mechanics or how to improve the process, organization, and technology that supports it. Unless someone is in charge of improving EDD, it is not likely to be conducted better over time.

Tom Barnett of Sullivan & Cromwell offers a good perspective on process improvement: “I spend about one-third of my time thinking about the process and organization of e-discovery. Over time, we have built a staff of technology specialists and project managers who run discovery day to day. It’s important that someone who understands the daily and detailed mechanics have the time and know-how to step back to consider improvements. With new rulings, new technology, and accumulated experience, we find that we constantly find ways to improve how we approach e-discovery. Given the stakes for our clients and for the firm, it’s important to review the process regularly and make that job an explicit responsibility.”

Mira Edelman, a counsel in Hughes Hubbard’s eDiscovery Practice Group, keeps abreast of best practices to provide individualized advice to clients tailored to each matter. “We have developed techniques and procedures to minimize disruption to our client’s ongoing business activities, while at the same time setting priorities to meet real deadlines. We manage the process to improve productivity, responsiveness, and cost-efficiency.”

Beyond risk reduction, improving the process has other benefits. First is faster turnaround and lower costs, which keeps clients happy. And second is less frustration for lawyers and staff; this can reduce attrition — a weapon in the talent war.

Advise Clients on E-Discovery and Litigation Readiness

The new discovery rules have a big impact on corporations. Some are in “reactive” mode, dealing with e-discovery requests as they arise. Others are actively establishing policies, both for records retention and managing e-discovery in specific cases.

Law firms have the opportunity to advise their clients. Tom Barnett observes that “corporations have the biggest risk and expense exposure. Many are actively developing EDD strategies. One of my key roles is to talk to senior corporate managers about their options, explaining the legal and technology issues, and assisting them in developing their plans.”

Fulbright has built an entire practice group made up of lawyers and technologists who work together to advise large companies on records management and EDD, says partner Laurie Weiss.

Hughes Hubbard finds that their e-discovery practice positions them well to serve a growing need of big companies – national coordinating counsel for discovery. Charles Cohen explains, “These companies need e-discovery litigators who are both in-court advocates and technology experts. We invest time learning about our clients’ IT infrastructure and knowledge management protocols, so that we can advise and assist with the many e-discovery issues that come up across our clients’ portfolios of current and potential future litigation.”

Caveats and Conclusion

The age of delegating discovery far down the chain may be over. Today, the right team to handle e-discovery typically includes one or more lawyers steeped in e-discovery and technology.

For firms that create the EDD Attorney position or an entire practice, how far should they go into the e-discovery realm? Most large firms with EDD lawyers or practices limit their business to counseling. Though most firms can process small batches of electronic data, for big batches, they typically retain a vendor. Outsourcing processing avoids dealing with peaks and valleys of demand. Moreover, it minimizes the chance that the firm’s lawyers or staff will have to offer testimony or sign an affidavit concerning the data collection or chain of custody. Most firms would rather rely on third parties for such testimony

What does that future hold? Will the EDD Attorney go the way of the “VP of Electricity,” a position that existed for a couple of decades after the advent of commercial electricity but then faded? Short term, the position and practice seems secure. Laurie Weiss of Fulbright observes that “Over the next five years, we’re probably going to be much better at this dance. Many litigators are going to know the steps. But right now, we’re still writing the music and it isn’t realistic to expect litigators to be able to have a simultaneous mastery of both their substantive legal area and the technology. This is an area where both the law and the technology are evolving at blinding rates, so litigators are going to continue to need help and support from technologists.”