I attended the BNA/Kroll event in Orlando today called: “Practice Under the New E-Discovery Amendments: the battleground of conflict; the promise of resolution.” Basically, the CLE tried to devine the impact of the new rules on business and litigation in America, and in the process provided many excellent, advanced practice tips.
The speakers included Judge Hughes, whose Top Ten Tips I festured in my last blog; another magistrate in N. J. District Court, Judge Ronald Hedges; Magistrate Judge David Waxse of Kansas City who decided Sprint v. United; Judge James Rosenbaum, a District Court Judge in Minnesota; and Judge John Carroll, a former magistrate in District Court in Alabama, now a law professor at Cumberland. These are among the preeminent e-discovery specialists on the federal bench, who have been studying and speaking on e-discovery issues for years. Their view from the bench was very enlightening.
So too was the contribution of other distinguished faculty, especially that of the two in-house counsel, Jonathan Eisenberg of Merrill Lynch and James Wright of Halliburton. Actually, Jim is not an attorney, he is a project manager who serves as the leader of Halliburton’s e-discovery team. Under his guidance, Halliburton has established one of the most advanced e-discovery teams in the country. Jim provided a wealth of practical insights on the team process and procedures, noting among other things that the biggest cost in e-discovery is attorney review of documents. That, in his experience, ranges in cost from $5.00 to $10.00 per file. For that reason he manages the initial filtration of documents very aggressively to try to cull down the number of files to be reviewed. He noted that outside counsel may not be as motivated to do so, since they are the ones performing and billing for these services. Jim mentioned some new software tools and strategies to help keep the numbers down, including “clustering” search technologies, enhanced janitor software built into the document creation, and early agreements with opposing counsel on restricted date ranges, searches and file type exclusions.
Under Jonathan Eisenberg’s guidance Merrill Lynch has done the same in its field, providing a sharp contrast to their competitors such as UBS Warburg and Morgan Stanley. Jon’s promotion and development of an internal e-discovery team arose out of his observation that in-house counsel without expertise in this area were rendered ineffective in modern securities cases. Now, under his leadership, Merrill Lynch carries out what he described as an eight step process: 1) litigation hold procedures; 2) custom search software; 3) filtration before export to vendors; 4) document destruction policy; 5) dedicated in-house electronic discovery team; 6) Encase type software tools to search for non-email ESI; 7) pool of reliable contract lawyers to review pre-productions; 8) in-house forensic experts.
Jonathan then went on to provide detail on the litigation hold procedures his team has developed. This is a seven-step process: 1) ID the custodians; 2) map the data sources; 3) send written notices and reminders; 4) monitor and enforce compliance; 5) interview key players; 6) collect information; 7) export data for production to outside counsel. On the key mapping step, he noted that it takes many months to do properly, and is impossible if you wait do this in response to a case. Like every other speaker at the CLE, he emphasized that it is impossible to do e-discovery perfectly, that you should expect mistakes, and document a good faith effort.
Finally, he mentioned a software program that both Merrill Lynch and Halliburton use to automate the litigation hold process: Atlas LCC by PSS Systems. It is tied into the HR databases, and notifies and implements direct transfers of data by custodians. It also keeps a record of the whole process and so facilitates documentation of efforts and up to the minute status reports.