Who Owns the eDiscovery Hot Seat – Corporate or Counsel?

Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2012-01-04 04:00:32Format, images and links may no longer function correctly. The vast majority of our corporate clients are public corporations with inside counsel. Generally we work directly under inside counsel’s supervision to protect our work product. A fast assessment engagement for a smaller corporation without any inside counsel got me thinking about eDiscovery risk vs. cost decisions in a different light. Civil litigation is a ‘sooner or later’ fact of life for any public corporation with enough revenue to tempt a plaintiff. As eDiscovery becomes a defacto business process, what hat is the typical inside counsel wearing when they make decisions on matter scope, filters, data sources and more? We tend to think of counsel as the final arbitrators of eDiscovery decisions. But frequently, inside counsel is wearing the business hat when applying the ‘reasonable effort’ standard to situations. In a company without inside counsel, who does that final decision fall to?
I’ll give you a hint, the buck stops with the budget. I have always said that only counsel can render legal opinion. However, so much of eDiscovery is not a black and white legal obligation, despite the marketing spin that providers try to put on every new eDiscovery case. Rather, initial relevance definitions are frequently blind guesses without the serious investment in time and effort to assess the matter. As I recently heard at the conference table, “Who knows what is really relevant better than the person doing the business?” Inside counsel and legal staff know the business organization, personnel, sources and systems. Without them, outside counsel has to try to provide enough education and opinion so that business executives can make an informed risk/cost decision. We tend to forget that inside counsel actually play a business role when they make many case decisions.
A good example of a ‘gray’ eDiscovery decision is the creation of known not-relevant ESI category filters. Most counsel seem to favor preserving all custodian ESI through the case lifecycle, even when 50-70% of communications could be excluded based on simple criteria such as domains, dates, communication direction and more. The decision to retain what you already have under hold is pretty simple and relatively low cost compared to the cost to fully process and review. So why can’t the business owners lead the creation of exclusion filters? I am not saying that business clients should make final relevance decisions under an actual discovery request. Instead, I propose that if we are going to integrate eDiscovery into the business lifecycle, we need to leverage business users to reduce the noise and get to the critical documents as early as possible. After all, it is their case and their money at stake.
It is worth remembering that as eDiscovery matures into an actual business process that we need to share our toys and the risk/cost decisions. eDiscovery can be technical and complicated, but the software is becoming more user friendly every year. As corporations invest in content management and business intelligence systems, it behooves legal to spend some time to educate business executives and solicit their participation in the eDiscovery lifecycle. When all is said and done, litigation is a business expense in the vast majority of cases and secondary to the fundamental business. Even if the person sitting in the eDiscovery hot seat is a lawyer, the essential risk versus cost decisions are being made on a business basis.