E-Discovery Examined In Depth

On July 16-17, 2012, Executive Counsel Institute conducted a cutting edge meeting in New York titled, “E-Discovery for the Corporate Market.” The theme of the two day meeting was “Controlling Your E-Discovery Destiny.” The Colloquium Moderators, Brown E. Marean III  from DLA Piper, David Kessler from Fulbright & Jaworski, and Paul Weiner from Littler Mendleson did an excellent job of keeping all of the participants actively engaged.

The panelists included: Steven C. Bennet, a partner at Jones Day; Richard Cohen, President of RenewData in Austin, Texas; Eric T. Crespolini, Vice President of eDiscovery Technologies; Andrea L. D’Ambra, Counsel at Drinker Biddle & Reath LLP; Eugene “Gene” Eames, Director of Search and Data Analytics at Pfizer;  Lynn Frances, Principal at E-Discovery Writer; Bill Gallivan, CEO of Digital WarRoom in Seattle; Daniel P. Kulakofsky, Managing Counsel and Director of Electronic Discovery at The Travelers Companies; Jason Lichter, Senior Counsel of eDiscovery and Information Governance at Seyfarth Shaw; Stephen J. Lief, Practice Support Counsel at Epstein Becker & Green and all-round high tech guru; Mary Mack, Enterprise Technology Counsel at ZyLAB; Maryrose E. Maness, Senior Vice President and Chief Employment and Corporate Infrastructure Counsel at Warner Music Group; Lynn Mestel, President of Hire Counsel in New York City; Tom O’Connor, Director Gulf Coast Legal Technology Center in New Orleans; Andrew J. Peck, United States magistrate judge in the U.S. District Court for the Southern District of New York; Farrah Pepper, Executive Counsel of Discovery at General Electric; Mary Pat Poteet, Senior Consultant at Project Leadership Associates in Chicago; John A. Schwab at Gordon Alfano Bosick & Raspanti; Debra C. Swartz, Chief Compliance Officer for AmerisourceBergen Corporation in Philadelphia; John Thacher, Director of Managed Review Services at TechLaw Solutions in New York City; Brian T. Wolfinger, Vice President of Technology at LDiscovery in Philadelphia; and  the eponymous Laura A. Zubulake, author and speaker on Information Governance.

I attended the meeting because, as a trial lawyer, I was troubled that I did not even know what I didn’t know about e-discovery. Having attended the meeting, I can report that I now know what I don’t know and there is a lot I now know I don’t know.  What I did learn, however, is that there remains a great deal of uncertainty throughout the e-discovery realm, and that technological advances are emerging almost constantly. I was somewhat comforted that even some of the technological gurus at the meeting, who are partners at major law firms, often have difficulty “selling” technologically advanced e-discovery solutions to their more conservative trial partners.

Judge Peck discussed whether manual document review and keyword searches will be replaced by computer-assisted coding, sometimes referred to as “predictive coding.” In an important recent opinion, discussed in an earlier blog post, Judge Peck provided a judicial imprimatur for the use of predictive coding in federal district court litigation but it has by no means been adopted broadly. Predictive coding may offer a new template for conducting e-discovery just as computerized research using Lexis transformed the manner in which lawyers perform legal research in the mid-1970’s.  Just as stodgy older lawyers then urged their  associates to stay away from that "computer box" and perform their legal research manually–with books–the time-tested traditional way, their counterparts today are leery of embracing emerging new e-discovery technology.

There was much discussion concerning data security, social media and The Cloud. There was frank discussion concerning ethical and contractual tensions that can arise between in-house counsel, outside counsel and e-discovery vendors. Discussions centered on factual and legal scenarios that had been encountered by attendees and panel members.  All of this made for a very worthwhile meeting.