Recap: Creating Your Own Discovery Team

This is our final recap from Discovery Symposium 1.0. If you would like more information on the event or to inquire about attending in 2010, please email us.

As more corporate legal departments are looking to bring discovery in-house, this panel was of keen interest to attendees.

What was very striking was how the panelists – an incredible group of leaders who really know about bringing matters in-house and managing the discovery process – have truly become knowledgeable about their respective companies’ IT departments. They're very familiar with IT -- something that likely could not have been said of most attorneys even just a few years ago. This sheds a little more light on the demands of the discovery process today.

Even though each of the panelists work within a large company with substantial IT departments, it was clear that the best practices they brought with them could apply to companies of any size. Creating a team often means including legal, IT, human resources, operations, outside partners – whoever touches the company’s data on a regular basis. And this team helps guide and monitor progress from through collection, production and review.

It’s also worth mentioning that the attorneys on this panel have collectively saved their companies tens of millions of dollars on the discovery process in a relatively short period of time. Talk about demonstrating the value of the legal department ...

Creating Your Own Discovery Team
Panelists: Senior attorneys from Fidelity Investments, Cox Communications, Hospital Corporation of America (HCA), Georgia-Pacific
Moderator: Candice Reed (Executive Director, Counsel On Call)

Summary of Dialogue
IT staff is critical to the team as well as representatives of other departments specific to your business. Know the people on your team; trust them. Know where the data is located. Know your systems. Trust your company knowledge, which surpasses that of a law firm.

The discussion began with a statement: E-discovery is a management task. Those in charge of discovery cannot be afraid of technology, must serve as traffic cop and coordinator, and need to be a “techie” who can talk to lawyers. When choosing members for your discovery team, it’s about 1) Having the right people on the team, and 2) Trusting your own judgment that you have put the right people on the team. One panelist said her team meets weekly.

Another panelist said she received incredible pushback from her outside law firm when she decided to build a discovery team in-house. Her team includes attorneys with employment and patent experience, a paralegal, representatives from the IT department, as well as a person from the legal department dedicated to e-discovery (who has since been moved to another department and not directly replaced). The team meets once a month.

Another panelist put her team together when in-house e-discovery experience quickly surpassed that of the company’s outside counsel. The core team consists of her, representatives from the IT department, as well as an outside consultant. Other team members are attorneys with commercial, labor, and insurance experience and representatives from Records Retention. Since three-quarters of her company’s corporate employees are members of the IT department, it is important to have everything IT-related documented – how the department is organized, who reports to whom, detailed protocols, and the location of specific data. This information also is in the company’s E-Discovery Manual, which is constantly updated. Due to an increasing number of matters, the panelist wanted to create a “thoughtful and consistent approach to review.” After each project, the team would discuss what data was collected, what part(s) of the process worked and what didn’t, and even examined the overall cost. Perhaps most importantly, they looked at what could be done to make future matters cost-effective. In order to better predict future costs, her company partnered with Counsel On Call, whose team handles several parts of the company’s discovery process, to find a software vendor that would do just that.

Another panelist stated that all data collection is done by her in-house team, which consists of a technology specialist (a member of the legal department) and staff members dedicated to forensics and collections. Representatives from compliance, human resources, and audit departments also are interested in the data collections. She added that the names of employees on legal hold are posted on the company’s main web page, giving the responsibility to each individual to know whether he or she is on hold. Also, everyone on legal hold takes a mandatory, computer-based training. She does not rely much on outside counsel (but is considering sending them to her company’s “E-Discovery College” course) as usually the in-house team knows and understands more about these matters. To communicate policies to her employees, she also hosts “Lunches and Lectures.”

Regarding the size of the team, the panel believes it is dependent upon the amount of litigation. The group was in agreement that the size is not as important as those who are on the team, specifically those who know where the data is located. One panelist’s top priority is to never turn over a privileged document; Other panelists had recently lost key team members and were filling the gaps internally.

In follow up, Ms. Reed asked the panel what keeps them up at night. One responded with “making sure we have all the data.” She worries that something will be left in a warehouse. However, she finds comfort in her IT staff. Each person has a designated back-up (another individual in the department) and all information is shared.

Ms. Reed also asked if outside counsel was involved in setting up the discovery process or is involved directly with the e-discovery team. One panelist said she uses outside counsel and often prefers to use first or second year associates simply because of their computer literacy. Her company currently has Counsel On Call attorneys on its discovery team, and she is adamant about outside counsel respecting these contract attorneys. Another panelist views outside counsel as part of the team as well but not as decision makers. All decisions are made internally because those in-house know the business and the matters better. Ms. Reed asked how she handles this with outside counsel. “Directly,” the panelist said. She tells outside counsel she wants efficiency and cost-effectiveness and to “go for it” if they can match it. This has not happened yet, and she is very confident in her company’s model and processes, and how they work with Counsel On Call to achieve cost savings. Also, she mentioned outside counsel helped define the preservation letter – “They can comment on it, not change it,” she said.

Recap: Software Decisions Good and Bad

It was clear from the onset that attendees were eagerly awaiting this panel, and that Mr. Efkeman, Mr. Lisi and Mr. Stout were the right attorneys to answer the questions before them.

There was great dialogue between the panelists and the audience, as many attendees were either currently in the software platform analysis process or considering purchases for their in-house dpartments.

Session II: De-dupe, Near Dupe and Being Duped: Software Decisions Good and Bad

Panelists: Senior attorneys from FedEx Express, Fidelity Investments
Richard Stout, Director, Litigation Support Division, Counsel On Call

Moderator: Dennis McKinnie, Executive Director, Atlanta, Counsel On Call

Summary of Dialogue
Themes: Review less data, and do it faster; Establish a good relationship between your legal and IT departments and ensure both are speaking the same language; Purchasing software is costly, and those decisions should be carefully considered, especially in an environment in which there is much consolidation currently -- but a purchase can save time and money in the long run; “Try before you buy.”

The panelists agreed that limiting the amount of data to review was paramount to containing costs. They spoke about the importance of Early Case Assessment (ECA) tools, specifically mentioning Clearwell and Trident (by Wave, a de-dupe/culling tool).

As ways to reduce discovery time and costs, Richard Stout (Counsel On Call) echoed the dialogue about reducing the volume of data to review and discussed how to review the data faster. Implementing the right technology and correctly managing the process are central; the volume of data to be reviewed can be reduced by implementing a Comprehensive Records Management Program (including an effective document retention policy), targeting the collection (searching key custodians, date ranges, specific terms), culling and de-duping data, and using ECA tools. Mr. Stout also mentioned companies with project managers available 24/7 as an important factor in selecting software.
 


The question of whether to purchase software was also discussed. While it was clear that every department’s needs and restrictions are different, the general consensus was there are some purchasing decisions that make sense. Clearwell was a very popular option among attendees. Mr. Stout stated that there is a lot of consolidation in the software business at this point in time – it is the fastest growing segment of the legal industry – so some might opt for a “wait and see” approach with many of these decisions. The technology is improving on almost a weekly basis, it seems, and new tools enter the market every month. The key, the panel and audience agreed, is having people who know how to use the software to its fullest capabilities; Mr. Stout stated that attorneys who know all the “bells and whistles” of a particular platform can ultimately save a client hundreds of thousands of dollars in efficiencies during a review (they review more documents per hour).

Some of the biggest mistakes cited by the group included not testing enough software and committing too early and not investigating (and therefore not implementing) the entire software structure selected.

One panelist mentioned that most, if not all, of the software companies will allow you to test their products for 30-90 days so you can see how it will work with your data. He said this ultimately became a big part of his “success” in software selection, or at least in purchasing a tool that is working well for his company.

The group also asked if anyone knew of a “good, end-to-end solution” currently on the market. While there are multiple tools that handle specific parts of the EDRM Model, there seems to be a need for a comprehensive tool. There was some discussion about particular platforms that are rumored to be coming out with more robust tools, but no one would site a particular tool they felt comfortable saying was good for all stages.