On its first day, the Carmel Valley eDiscovery Retreat has been a refreshing change of pace from most of the other legal technology shows.  The location is both beautiful and serene; it’s most certainly not frenetic like LegalTech.  The mix of attendees is a nice one – there are corporate folks, law firm partners and associates, vendors, and independent consultants.  That mix provides for lively debate and a rich variety of perspectives.

The opening keynote by Laura Zubulake reminded us that less than ten years ago, we were still in the “stone age of eDiscovery” before her landmark case against UBS Warburg set off a frenzy about electronically stored information, or as we now refer to it: ESI.  Some interesting tidbits from Laura’s speech:

-       Never underestimate the role of the plaintiff.  Too often, we look at eDiscovery from the defendants’ point of view, focusing on how those being sued can preserve and collect information.  Laura reminded us that the plaintiff in a case often knows what to look for better than anyone else involved and that the plaintiff’s legal team should rely heavily on the individual plaintiff(s).

-       ESI in civil litigation is akin to DNA in criminal investigations.  A digital fingerprint is often the key to proving the case.  And, there is nothing like showing a witness an email found in discovery so the witness is forced to answer to it.

-       We’ve made progress, but not enough.  There are still cases reminding organizations of the duty to preserve and of some of the obvious triggers of that duty that often go ignored.

My first panel session was called “Approaches to Content Lockdown and Preservation.”  I was honored to have Sarah Ratcliffe Choi, Brad Harris, Anthony Knaapen, and Kaycie Wall – all experienced eDiscovery professionals and excellent public speakers.  A few key themes emerged in this session:

-       Document, document, document…write it down.  The legal hold process needs to be codified and written notices of holds sent to custodians.  This is simply the minimum, but everyone is surprised by how often it gets overlooked.

-       Get specific.  Know where data lives and do the data maps.  It’s impossible to preserve data if you don’t know where it is.

-       Preserve data in place until it needs to be collected.  There was a good discussion about “in-place” preservation and what it means.  In the context of our session, the panelists seemed to think that custodians should hold onto their data as per the hold notification.  When the company needs to collect, it will.  While the collection process should be connected to the preservation, it is a discrete activity.

-       Define what is reasonable with the help of outside counsel.  Law firms deal with multiple clients and see what many diverse organizations do in terms of locking down content.  It’s only logical for a corporation to bounce questions of what is reasonable off the law firm.

My second panel session was titled “Managing Legal Holds in Enterprise Repositories” with the illustrious Mary Mack.  Much of the talk centered on classification of information for the purpose of assigning retention policies (defensible disposition to get rid of information so that it is not subject to discovery later on).  Content classification remains a challenge, while automated classification via analytics remains relatively untested in the real world.  There seemed to be a desire to get some kind of jump start on how to categorize content using analytics, but without taking humans completely out of the process.  It will be interesting to watch classification evolve.  There is simply too much information to expect that humans can possible classify it (and classify it consistently).  eDJ is set to do some research on the subject this fall, so stay tuned.

I’m already looking forward to tomorrow’s sessions on defensible preservation and managing eDiscovery as a business process.