Notes From the E-Discovery Town Hall
The E-Discovery Town Hall presentation yesterday afternoon at LegalTech New York featured questions submitted in advance on YouTube, including one by Cambridge University professor Stephen Hawking. Here are some of the panelists' introductions and some of the questions, although not Professor Hawking's, unfortunately.
The panel was moderated by Patrick Oot, director of electronic discovery and senior litigation counsel for Verizon. The panelists were:
- Browning Marean, a partner at DLA Piper;
- Patrick Zeller, vice-president and deputy general counsel for Guidance Software, Inc.;
- Craig Ball, a lawyer and certified computer forensic expert;
- George Rudoy, director of global practice technology and information services at Shearman & Sterling;
- Ken Withers, director of judicial education and content at the Sedona Conference; and
- Theresa Beaumont, discovery counsel at Google.
Much of the discussion centered on the costs associated with e-discovery review and production, which can dwarf such costs in conventional, i.e., paper, litigation. Craig Ball suggested that uncertainty drives decision about data collection, which results in unnecessary costs. In other words, if you're not sure what your client will need to produce, you may err on the side of including too much information in your review. He recommended that litigants "push for compulsory collaboration in the data collection process," but that as to evidence preservation issues, "you're on your own."
Craig also recommended the use of special masters. Their advantage is that they are neutral and technologically savvy and can assist in mediating a settlement where e-discovery costs will be substantial, which seems to be nearly any case involving e-discovery.
Also generating discussion was Federal Rule of Civil Procedure 26's meet and confer obligations. In response to a question about whether there is any standard checklist for the meet and confer, Ken Withers said there is no 3x5 laminated card you can pull out of your pocket and consult, but that certain basic considerations apply in most every case.
He said that everyone participating in the conference must have a good grasp on his or her client's "data holdings." He also said that too many lawyers treat the meet and confer obligation as perfunctory, which usually has disastrous results, for the lawyers and the client.
Lastly, the presentation mentioned the conflicts that can develop between clients and their counsel. Browning Marean pointed out that lawyers need to know the scope of their client's response to discovery. In e-discovery particularly, where more document review and production can translate into huge sums of money, a client may want to narrow its discovery responses in order to reduce expenses, while its lawyer may view the issue more broadly and recommend -- or insist -- on broader responses. This conflict can also arise between in-house counsel and outside counsel, and needs to be resolved as soon as possible.
By the way, Professor Hawking's question was whether lawyers could rely on key-word searching in document production; the answer, at least according to Craig Ball, is no, unless the lawyer is also a linguist, statistician, or computer scientist.
The presentation will be available at LegalTech on Demand, which can be accessed on LegalTech.
