A Proactive eDiscovery Approach Would Make Hannibal Smith Proud

Who doesn’t love an A-Team reference? Let’s get to the backstory. …

On September 26, Ken Koch (Managing Director, KPMG, LLP) and I had the privilege to speak to a roomful of healthcare and compliance lawyers on the subject “eDiscovery: A Tactical Approach to Managing Risk and Reducing Cost” as part of the Fraud and Compliance Forum, co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association.

The subject matter was straightforward: why is planning for e-discovery so important? We started with examples of how e-discovery costs are directly impacted by handling it well, doing it just okay or doing it poorly. The cost can be many multiples more if handled poorly versus handling it with planning and forethought. Volume and types of data are huge drivers in the overall discussion of costs for e-discovery; other factors include record retention plans, discovery workflows, record collection initiatives (whether overly broad or more targeted) and search and culling methodologies or technologies utilized.

To the readers of this blog, none of this is necessarily new information. But one point in particular – that the review component of the EDRM model is often referred to as “the most expensive piece in the process” – is where I would like to diverge. During our discussion, I argued that the steps leading up to the review actually have more impact on overall cost of the review project: how a company deals with documents from a retention perspective; how it prepares and plans for the project; how the company targets its collection; and how the technology and methodology of culling and searching the data are bigger components of the overall cost and will directly impact the volume, time frame and budget of the review itself. Stay with me for the A-Team analogy. …

Being proactive on all of these steps is key. Waiting for litigation to hit before deciding on how to send a legal hold or to start training internal IT resources on the preservation (and perhaps collection) of data will only serve to increase overall project costs. Getting IT, Legal, Compliance, and Retention folks in the room to deliberately plan an e-discovery response before litigation hits will save a lot of money. Topics could include data mapping and choosing technology and review partners, or simply getting the IT and Legal departments to list out the steps each will take upon the sending of a legal hold notice.

When the review itself begins, the use of a core team of attorneys who are dedicated to the client over long periods of time and on multiple projects will enhance efficiency and contain costs on all subsequent review projects. This dedicated team will help provide guidance on each subsequent project for culling techniques, familiarity with your company acronyms, privilege terms, in-house and outside counsel names and the ability to track metrics will, working together, provide the most cost-effective review project.

Being proactive takes time and money on the front end, but that’s the short-term view. These costs will be recouped tenfold when you’re hit with your next e-discovery project and put the plan into action, so it’s time and money well spent. And when successfully implemented, maybe you’ll have the inkling to utter that famous Hannibal Smith line (George Peppard version, of course) from the A-Team: “I love it when a plan comes together.” Cigar optional.

Maybe we should explore who represents the Face, Murdoch and B.A. Baracus characters. ...

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.