I attended this ABA event in Chicago yesterday at the Hotel Intercontinental. There was a big turnout for this e-discovery event by the ABA’s Section on Litigation. It was an experienced crowd of lawyers to be sure, but there were not that many young lawyers, and I had the feeling the room was not exactly filled with bloggers, techies and web 2.0 aficionados. All of the speakers were pretty good, and this was a quality event. Some were even quite funny, although a few admitted that they knew nothing about e-discovery, and did not even want to know how computers and ESI worked. Apparently they were there because they were experts or professors on ethics, litigation and the like. One of them kept opening and closing a lap top on the podium and then looked around confused, wondering where the sounds were coming from (it had a hibernation sound), until a friendly moderator finally came to the rescue. Oh well. This same speaker advised everyone to affiliate with lawyers 32 years old or younger on e-discovery issues, on the presumption that only they could figure this all out. In fact, he said lawyers had an ethical duty to bring in competent techie lawyers, if they could not themselves understand the technologies involved in the ESI search. That much I agreed with.
Three of the faculty that the ABA Section of Litigation assembled for this event stood out as particularly good: Andrea Zopp, the keynote luncheon speaker; Kevin Esposito, a panelist on the “Cost Reduction Strategies” segment; and Judge Paul Grimm, a panelist on the last session on ethics.
Ms. Zopp was the general counsel for Sears for many years, and is now serving as the head of human resources for Exelon Corp., Chicago’s power company. Her presentation was entitled: “We Have To Do What? The In-House Perspective.” The speech was as funny as the title and provided a rare, frank glimpse into the mind of in-house counsel on a number of subjects, not just e-discovery. She was very blunt in saying that is is absolutely imperative that outside counsel personally meet with their in-house counsel clients and closely question and educate them on e-discovery issues. She explained that most in-house do not really understand e-discovery, nor do they want to. They like “shiny things” and want all of them, but could care less how or why they work. She also jokingly said not to trust what in-house counsel tell you, not because they are ill intentioned, but because they are so future oriented, always focusing on the next task at hand, that they do not remember things in the past that well. Also, she pointed out that corporate departments are tribal, and even the larger IT tribe has various sub-tribes within it, and you should never assume that the various tribes and sub-tribes in a company ever speak to each other or know what they are doing. So when you meet with IT people, you have to meet with all departments and levels of IT.
This message was emphasized by Kevin Esposito, in-house counsel for Pfizer who heads up its e-discovery team. Kevin was a great speaker who really livened up the panel, and got the most laughs with his imitations of what many IT geeks sound and act like. As a true geek lawyer himself he spoke with authenticity and sympathy for the IT techies that we must all depend on in the world of e-discovery. He had some good suggestions on how to communicate with them, pointing out how challenging that always is. He advised working with them closely before the 26(f) conferences, but to never actually bring them to the conference. They are likely to speak out of turn and volunteer information that could get you into a lot of trouble. Mr. Esposito made clear that you have to meet in person with a company’s IT staff, and not just the CIO, but all levels, especially the “lowest” level of the help desk and back-up technicians. Only the “rubber meets the road” techs actually know what is going on in IT, and what the ESI storage practices really are. Otherwise you risk falling victim to the old “telephone” game, where the one who receives the final message (the trial lawyer) gets it all wrong.
All of the panelists on the Cost Reduction Strategies panel agreed that the key to costs savings was to spend more up front to create an effective ESI response team, to map the data, and set up sound processes and procedures for preservation, identification and collection. Conversely, they stated the “worst enemy of cost control is the poorly organized and poorly prepared” internal e-discovery response team. This is all the stuff I regularly preach, so it was reaffirming to hear all of the panelists agree. In fact, this was one of the underlying themes of the whole conference.
The last presentation was “E-Ethics: Practical Consideration and Ethical Issues in Electronic Discovery.” Here Magistrate Judge Paul Grimm of Baltimore, Maryland, made a strong impression with his practical approach. Judge Grimm has gone far deeper than most judges in the area of e-discovery, and has even helped developed a set of e-discovery protocols for the proper conduct of counsel in Maryland. I suggest you take a look at these well considered local rules. As Judge Grimm said, they make a good checklist to be sure you cover everything. The ethics panel all agreed that the “Zubulake Duty” (discussed in the blog page above) is inherent in the new rules, and sets a new standard of care for all attorneys to follow. They called this a “sea change” in discovery duty and responsibility. The distinguished panel, including the current head of the ABA’s Litigation Section, agreed that outside counsel has a duty to sit down and meet with the general counsel and IT personnel, that it is not sufficient to just call and write. As Judge Grimm put it, the “empty head, pure heart” defense just won’t cut it any more.