WHITEPAPER: Technology Making the Case for Smarter E-Attorneys

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Apr 16

Corporations in almost every industry sector are beset with issues relating to effectively leveraging technology in order to build a bigger and better market for their products and services.  Technology has rapidly changed how business information is created, transmitted, disseminated and stored.  Issues pertaining to how to deal with the explosive growth of electronic data are becoming part of every corporate budget meeting.  As a result, businesses are becoming increasingly reliant on their corporate counsel (both inside and retained) to provide them wiht the guidance they need to effectively navigate these waters without increasing their exposure to unwanted litigation.

Over the course of the last few months, this blog has focused on issues ranging from the onslaught of cloud technology to ESI preservation to the advent of admissible predictive coding.  In each of these areas, corporate counsel's role has expanded to become a more active partner in making the decisions that were traditionally reserved for the IT department.  Indeed, courts and legislators are now increasingly viewing counsel's role as integral in supervising the preservation and production of corporate ESI.  With the increased responsibilities comes increased exposure, making it more imperative for counsel to be well versed in all issues relating to eDiscovery.  Three recent articles highlight the increased responsibilities for corporate counsel:

While cloud technology has been in place for years, it has only now come to the forefront as an issue for counsel.  The push to move costly stored data and applications into the cloud has motiviated corporations to explore the feasibility of cloud technology.  In her article Legal Community Looks to the Cloud for Next-Gen Discovery Solutions, Michelle Lange writes that corporations and law firms are increasingly conducting more eDiscovery in-house.  According to a recent Kroll survey of 100 Fortune 1000 corporations and 100 medium to large-sized law firms, 86% of respondents indicated that they in-source some aspect of eDiscovery.  The cloud is a large part of that strategy.  According to the same survey, 46% of companies and 37% of law firms indicated that they are comfortable storing data or conducting eDiscovery in the cloud.  Security, privacy and accessibility of information are all legal issues inside counsel must consider when deciding whether to move corporate data to the cloud.

The second article highlighting the elevated role of attorneys in technology issues regards the emergence of predictive coding in large-scale litigation.  Predicitive coding uses technology to analyze documents coded by attorney reviewers as responsive, privileged or key, and then suggests similar documentsfrom the population not yet reviewed.  David J. Kessler and Florinda Baldridge of Fulbright & Jaworski detail the inner workings of predictive coding in their article Predictive Coding: 5 Things You Should Know.  What becomes clear in this article is that the defensibility of predictive coding rests not with the tools but with the process used by the attorneys to initially identify relevant documents.  Transparency of the process used to exclude documents is a major element considered by the court when determining defensibility.  Kessler and Baldridge conclude that attorneys adept at implementing defensible review processes can "leverage predictive coding to perform discovery and review in an efficient, cost-effective manner, and ultimately bring value to a process that is often viewed as a necessary evil."

The last article is a piece on recent changes proposed to the Federal Rules of Civil Procedure regarding the preservation and spoliation of ESI.  Preservation of ESI has never been explicityly defined in the Rules.  Instead, the Rules have focused on the preservation of ESI from the perspective of spoliation.  The proposed new rules offer more guidance on how ESI should be preserved in the anticipation of litigation by both parties and non-parties.  Stephen T. Roberts of Mendes & mount writies in Dramatic Changes to Federal Rules of Civil Procedure Proposed that a special committee has proposed a new rule that triggers a duty to preserve ESI when a subpoena is received by a non-party, or when a person becomes aware of facts that would lead a reasonable person to expect to become a party to an action.  The duty remains in effect for all existing and subsequently created documents or ESI until the termination of the involvement of the party or non-party, or until a person becomes aware of facts that would lead a reasonable person to believe that he or she will not become a party to an action.  While the proposed changes are still a ways off from being formally adopted, Roberts writes that the discussion has made clear that the best practices for dealing with the preservation of ESI is the issuance of a "written 'litigation hold' to those 'key players' in an organization most likely to possess documents or ESI that will be important in a case."  The hold needs to be periodically reviewed and "consultation with in-house or external litigation counsel is essential."

Whether it is the implementation of new technology, the creation of a defensible review protocol or the preservation of client ESI, today's corporate counsel is being asked to wear many new hats.  The growth of information technology is re-making the traditional image of a corporate attorney into a corporate e-attorney.  The ability of corporate counsel to adapt to these changes will likely result in a more efficient and profitable client.

David S. Weber is General Counsel for Digital Discovery www.digitaldiscoveryesi.com and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms. He can be reached at dweber@digitaldiscoveryesi.com.