Who Should Drive the eDiscovery Bus?

By Brad Jenkins & Kirke Snyder

After reading the relatively recent public scolding of trial counsel in Qualcomm v. Broadcom* and Bray & Gillespie v. Lexington Insurance Co.**, one might ask, “Who should own the e-discovery process?”

Both of us have personally been involved in well over 250 eDiscovery matters as a vendor and expert consultant respectively. We can say without reservation that the debacles in the Qualcomm and Bray cases are far too typical of many eDiscovery projects. Sanctions, unhappy clients, and obscenely high attorney fees and vendor expenses stem from one common problem — clients who assume that trial counsel is an experienced expert in all facets of litigation, including eDiscovery.

While most trial counsel understand the Federal and State Rules of Civil Procedure and have read the latest case decisions involving eDiscovery, very few (perhaps only a handful) understand the technical requirements and protocol to identify, preserve, and collect potentially relevant materials from network servers, desktop computers, and decommissioned legacy computer systems. Because they lack this specialized technical expertise, they often assume that others (the client’s IT Department, an outside vendor, or the law firm’s in-house litigation support team) will assume technical responsibility.

This leap of faith is as problematic the trust clients place in trial counsel, thus creating a vicious cycle. Corporate IT departments typically do not have the training or tested methodology to perform legally defensible eDiscovery. While vendors have the expertise and the required specialized applications, they tend to process as much data as possible at very hefty rates. And, ironically, law firm litigation support organizations typically don’t have the specialized expertise, the automated tools, or the incentive to take on data collection and e-file processing projects.

Who’s Driving The Bus?

If corporations are ultimately responsible for the risk and cost of eDiscovery, and if the discovery of electronically stored information (ESI) isn’t just a passing fad, perhaps it’s time for the very organizations that own the data and therefore own the problem, to take charge and drive the eDiscovery bus.

“Driving the bus” doesn’t mean firing outside trial counsel or excluding expert vendors and consultants from the process. It means owning the process. It means being prepared for eDiscovery, rather than reacting to eDiscovery. To drive the bus an organization must:

1. Define the eDiscovery roles and responsibilities of key employees and outside experts.
2. Develop a written protocol for a litigation hold notice.
3. Train IT personnel to create a data topology map and inventory of potentially relevant electronically stored information within and outside of the organization.
4. Learn how to preserve, collect and cull collected data while maintaining chain-of-custody and avoiding data spoliation.
5. Maintain a detailed audit trail of decisions made and actions taken.

Perhaps it’s time for the very organizations that
own the data and therefore own the problem,
to take charge and drive the eDiscovery bus.

Learning to Drive

The Internet is peppered with 1–2 hour, vendor sponsored, continuing legal education programs about the “issues” of eDiscovery. Unfortunately, law schools, paralegal schools, and university IT programs have been slow to recognize the need to provide specific eDiscovery expertise in their curricula. So … where does your organization (corporation or law firm) gain the expertise outlined above?

You must locate an eDiscovery service provider
that offers a "drivers-ed" program so to speak.

You must locate an eDiscovery service provider that offers a “drivers-ed” program so to speak. Such vendors will teach your personnel how to perform legally defensible eDiscovery. They will let you load data on their system and allow you to drive the process as they sit in the passenger’s seat and look over your shoulder. They will provide checklists, protocols, audit trails to manage the risk of e-discovery. And equally important, they will show you how driving the bus will significantly lower the cost of eDiscovery.

Taking Control

Parties to litigation need to understand their ESI in the early stages. Within weeks after the summons and complaint have been served, they must be prepared to make initial disclosures and negotiate eDiscovery issues. When your organization is in the driver’s seat, it can easily defend its methodology for litigation hold, preservation, and collection of potentially relevant ESI. Why? Because your well-developed litigation plan will address the eDiscovery issues often challenged by opposing counsel, namely:

1. How the organization chose the sources for information preservation (email servers, shared servers, desktop computers, or backup tapes).
2. Assurance of why potentially relevant ESI does not exist outside of the sources chosen for preservation.
3. How the organization chose the filters for information preservation (date range, custodian, document type, or key words).
4. Assurance of why potentially relevant ESI does not exist outside of the data filter parameters.
5. An inventory of data the organization considers inaccessible.
6. Justification for the claim of inaccessibility (duplicative data, irrelevant data, or an argument that the cost does not justify the benefit).

Parties to litigation need to understand
their ESI in the early stages.

Conclusion

Not being in the eDiscovery driver’s seat can be very costly. Ask the parties in the Qualcomm and Bray matters referenced above. Are you paying invoices from vendors for processing e-files into a searchable database? Are you writing checks to outside counsel to review the e-files before production to opposing counsel? If so, you need to learn how to drive the bus. Identify an experienced advisor, assess your current capabilities, create a discovery plan, and define roles and responsibilities. And don’t forget to take a few laps around the parking lot before you get into heavy traffic.

* Qualcomm v. Broadcom Corp, 2008 U.S. Dist. Lexis 911 (S.D. Calif. 2008)
** Bray & Gillespie Management, LLC v. Lexington Insurance Co., 2009 U.S. Dist. Lexis 21250 (M.D. Fla. Mar. 4, 2009)

About the Authors:

Brad Jenkins is the President and CEO of Trial Solutions (www.trialsolutions.net). He has over ten years experience in delivering litigation support software and services, including extensive consulting on large multi-party litigation matters and multi-city collections. Brad is an accredited CLE instructor and regularly speaks on the topics of litigation support technology. He has a BBA in Marketing from Texas A&M University with extensive course work in Computer Science.
Contact Brad at bjenkins@trialsolutions.net

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Kirke Snyder JD, MSLA, the founder of Legal Information Consultants (www.e-discoverycert.com), is an expert regarding eDiscovery, Records Retention and Document Management requirements. He co-authored ARMA International’s e-Discovery Risk Profiler application and for the last twenty years Kirke has been an adjunct professor of law and ethics at Regis University School for Professional Studies in Denver, Colorado.
Contact Kirke at ksnyder@e-discoverycert.com