eDiscovery events usually evoke images of packed exhibit halls, panels of guru bobble heads and offsite gatherings of social butterflies. I love and hate the iconic February migration to chilly New York. That is why Barry Murphy and I jumped at the chance to contribute to last year’s Carmel Valley eDiscovery Retreat (CVEDR). Little did I know that Neil Signore had pioneered the same kind of intimate exchanges of perspective years ago. Mikki Tomlinson and I participated in the Executive Counsel Institute’s – “The Exchange” two day conference on eDiscovery for the Corporate Market in Chicago. The open format and ground rules facilitated the same kind of informed, interactive discussion that made the CVEDR a success. Here are some of the memorable highlights (minus attribution per event rules).
- The session on ethics raised the possibility that the ABA ethics guidelines may add a technical component for the 2020 update. More interesting is the Attorney’s Liability Assurance Society’s new guidelines members covering upstream discovery. I have not had the bandwidth to download and digest their publications as of yet, but we should all monitor attempts to provide ethical guidelines such as the EDRM’s recent Model Code of Conduct.
- Project Management – This session got a bit hijacked by the need for project managers to track, report and analyze eDiscovery time and costs. One participant made a great point; until we get more caselaw or rules that enable real discovery cost recovery, there is little incentive for litigants or clients to put the effort into using the new eDiscovery UTBMS billing codes published last year. Another asserted that the primary goal of a project manager is to enable communication and coordination between the discovery teams; client, firm and provider.
- eDiscovery Resources – Participants contributed their favorite web resources, iPad apps and the need to broaden the eDiscovery message and content beyond litigation support to rest of business community. The eDiscovery impact on Information Governance, retention management, mergers & acquisition, compliance and corporate big data means that IT, records management and other business groups are trying hard to get up to speed. This relatively unsophisticated audience may not understand the potential bias behind marketing materials and other interpreters of hot cases.
- eDiscovery Certifications – The eDJ Group is currently conducting surveys and research on available training and certification programs. Many participants dismissed the value of these relatively young programs in favor of strong references and concrete discovery experience. Even technology specific certifications seemed to get little respect, though it was acknowledged that administrative certifications accompanied by strong database skills were a definite plus. Overall, technical certifications appeared to be much more relevant to job seekers than generic eDiscovery courses or certifications. One counsel made a very sharp observation that the ethical guidelines and course best practices might actually be used against an expert or fact witness with a well padded vitae during deposition.
- Technology Assisted Review (TAR) – As expected, the debate on human vs. technology assisted review evoked spirited responses. The group as a whole seemed to be uncomfortable with the assertion that TAR was ‘more effective’ than traditional search or 100% review. However, there appeared to be a consensus that a mature process combined with the right people AND supporting technology to tackle large and complex collections. One counsel asserted that the typical model of search term negotiations are ineffective because most are not based on iterative, measured testing of searches. The overwhelming number of matters with disproportionate discovery can make Sedona’s Cooperation Proclamation wishful thinking. There was very vocal opposition to the production of non-responsive seed set documents (as seen in Da Silva Moore). Many counsel felt that this ‘transparency’ posed serious risk and exposure to serial litigant clients.
Overall, I am glad that the eDJ Group has chosen to participate in these ECI Exchanges and I hope that you will find similar venues to contribute your opinions, experiences and questions. We will be attending the next ECI “The Exchange” events in New York (July 16-17), Houston (Sept 18-19), and Los Angeles (Dec 11-12) and we hope to see many of our readers there.
One last thought…our obligations of confidentiality, privilege and the adversarial nature of discovery itself pose serious barriers that we must overcome if eDiscovery is going to become a mature business process. Programs like these go along way to help break down those barriers.