Social Media Panel: Early Involvement, Where We're Going, What to Do

Social media is here. You know it from your personal life. You know its usage from political uprisings, natural disasters, other world events and the constant call to “weigh in” from news outlets or broadcast programs. And everyone wants to be your “Friend.”

It’s certainly growing in the legal community, too. In 2008, the ABA conducted a study that found that only 15% of lawyers used social media. That number went up to 56% in 2010 and no doubt continues to increase.

If you ever want to see an in-house attorney’s face lose its color, just bring up the subject of a company’s employees having free reign on open social networks anytime, anywhere. But that’s where we are, so now it’s time to discuss its impact in the business and litigation environments to see how corporations need to prepare for its proper usage in the ordinary course of business and prepare to deal with it in the inevitable litigation that will involve it.

That’s why this year’s first Discovery Symposium 3.0 panel discussed the impact of social media. The key factor is that everyone’s doing it, so there’s lots of it – whether on LinkedIn, Facebook, Twitter, foursquare, YouTube, photo-sharing sites, blogs or the dozens of other outlets most attorneys don’t even know exist. Businesses need to become savvy in the areas of usage policies and preserving and collecting this ESI as it becomes necessary for litigation, and to understand its impact on the overall costs of litigation. The E-Discovery 2.0 Blog just posted about these issues in particular and click on for more thoughts from the DS3.0 panel...

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"Bad E-Discovery Costs $60 Million Per Year."

That was the comment that got the most gasps from attendees of Discovery Symposium 3.0, our annual event for general counsels, directors of litigation and e-discovery managers.

The select group of attendees – approximately 50 senior attorneys from 40 corporate legal departments – come together to discuss the challenges they’re facing involving e-discovery, solutions we’ve collaboratively executed, and share stories about technology tools in the marketplace and different approaches with outside counsel, among other topics. The full agenda can be seen here. It’s a highly engaged and interactive group that has proven to consistently identify numerous best practices in the discovery realm and truly cares about seeing one another succeed.

Now, back to the byline… one of our attendees, from a Fortune 100 company with an extremely knowledgeable legal department that has taken the majority of its e-discovery work and processes in-house, shared with the group that the company conducted an in-depth study on the true costs of e-discovery. The report included issues such as outside counsel and vendor costs, retention and collection policies, internal resources and technology, the possibility of sanctions, and many other factors. The attendee’s full quote is this:

“For a $25 billion company, handling e-discovery very well costs approximately $3 million annually. Average e-discovery costs $10 million. Bad e-discovery costs $60 million per year.”

While results may vary for corporations, those are eye-opening numbers and we're glad we're helping them get on the right side of those numbers. It led the discussion about how a department can’t just let outside counsel handle all things e-discovery anymore (even though most are past that) and it’s now so much more – there has to be process at every stage, there has to be real management and monitoring, there has to be a real dedication to quality control, and IT and Legal must be on the same page. All help build a “great” process. If a company isn’t focused on these things, one attendee shared, it’s “borderline negligence. At best you’re costing your company millions of dollars a year.”

The attendee went a step further, saying that "this data shows that Legal can be a revenue generator, so to speak. We can stand there and make a very strong argument as to why we need to spend money on certain software, or why we want to partner with certain companies... or even not work with certain law firms or vendors."

We’d be interested to hear your thoughts on the numbers above. The legal industry certainly isn’t averse to hyperbole, but this report holds up against much of the client data and results we track and report. For instance, it’s not uncommon to save clients in the eight figures over the course of a year compared to previously utilized models that didn’t focus on eliminating data, experienced project management or incorporating client-dedicated teams of Counsel On Call attorneys.

We’ll also follow up with thoughts and quotes from some on the different DS3.0 sessions.
 

Who Are the E-Discovery Attorneys?

In previous entries, I wrote about enjoying the discovery work that I do. Recently I have given more thought to the question of why it is that I enjoy it; after all, so many attorneys view the work as transitional or laborious. For me, the autonomy is great. The subject matter changes from project to project. I have opportunities to meet and work with different attorneys, clients, litigation support staff, and vendors, all of which I consider an added bonus. These things would also be true if I were practicing in a more “traditional” manner as well, however. So my assessment is that it must be something deeper that compels me to choose this career path over any other.


It was only recently that, when introduced by Andy Branham of the Memphis office as somewhat of a “computer nerd who happens to be an attorney,” that I had an epiphany. He was right.


There is a subset within the legal profession comprised of attorneys who consider themselves specialist discovery attorneys. The attorneys I’m referring to consciously chose to work in this rapidly expanding area of the law. But where did they come from? Perhaps some attorneys have inadvertently found this career as a result of being the go-to person for technology-related questions in a firm. Discovery attorneys possess a genuine interest in the work and a desire to use their experiences to contribute in the discovery process. These attorneys appreciate the complexity of e-discovery, the intricacy of the collection, culling and review processes, and ultimately the end product, the production. Here at Counsel On Call, our attorneys also often have the opportunity to handle additional discovery-related work, such as privilege log, research and writing and witness prep, among other responsibilities.


Perhaps these attorneys can visualize the process more easily than their colleagues. Perhaps they consider how technology can provide them alternatives and understand and embrace it, not just the end product that the technology may provide. Discovery attorneys are problem-solvers with a twist, using the technology to their advantage. They may work for large corporations, law firm technology departments, or independent e-discovery organizations that fill the niche role of discovery counsel. They work in conjunction and partner with in-house and outside counsel completing what could be referred to as the three-legged stool model of client representation.
 

E-discovery is still in its infancy and for me, as well as others drawn to this work, it is a grand opportunity, one that allows us to continually improve upon our skill set and enhances our knowledge base. I am thankful to have experienced mentors at Counsel On Call who appreciate this desire and continually assist in the furtherance of my growth as a discovery attorney by providing advice, insight and other resources. They recognize the value in providing growth opportunities that will not only benefit the individual and the team but also provide added value to our clients.


There’s also no question technology helps my colleagues and me do our jobs better and faster, thereby amplifying that value we offer our clients. That’s a win-win scenario as I see it, and I think attorneys who are into learning about new tools are perfect for e-discovery work. I look forward to diving into the practical uses of this technology in subsequent posts.

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in Counsel On Call’s newsletter from last summer.