E-discovery post- “Zubulake Revisited” at IQPC

IQPC’s 3rd E-discovery conference for Financial Services felt like a spa day after LegalTech. You get your CLE credit in a room of less than 40 people while being fed gourmet cookies in a comfortable chair with an expensive view of Times Square – unlike LegalTech, where you spend half your time in an elevator of 40 people, and someone has pushed the button for every floor.

There were some noteworthy insights for anyone considering an investment in e-discovery software or services.  We’ve been crunching numbers for our E-discovery User Survey this week, with some interesting results:

  • the overwhelming majority of respondents were still performing every part of e-discovery primarily in–house
  • but about half were planning to make an e-discovery purchase in the next year
  • however a large number of them hadn’t finalized their choice of product or vendor.

So, how to choose?  Well, in the wake of “Zubulake Revisited,” there is now more judicial guidance on the e-discovery process and certainly more at stake.

To get an idea of what the courts are looking for and how companies are adapting, I attended IQPC’s Judicial panel on avoiding sanctions, as well as the panel on building a corporate e-discovery response team, featuring e-discovery senior management from Lehman Brothers Holdings, Barclay’s, MetLife and Bank of New York.

A few takeaways:

  • Judges on the sanctions panel were not sympathetic about high data volumes, saying “Lawyers just have to start dealing with it and make requests and responses appropriate.”  They rejected objections to “burdensome” ESI production requests and criticized litigants for lying about production costs to avoid producing data. One recommended native file production to cut costs rather than requesting images or paper (!)
  • Judges called for earlier preservation with a written legal hold, particularly in the wake of Scheindlin’s “Zubulake Revisited” opinion, which they called a “shot across the bow.” One claimed that some companies spent ten-digit numbers on preservation alone, especially if they’re caught at a late stage and can’t easily go back. That figure sounds like I must have misheard, but I don’t argue with judges.
  • Judges criticized the lack of cross-functional IT and legal expertise at Meet and Confer and in collection of data. They recommended consultant Craig Ball’s 50 questions to prepare for Meet and Confer [pdf], and advised that e-discovery collections be supervised by someone who should anticipate having to testify in court.
  • In the corporate E-discovery panel, Lehman Brothers Holdings (the entity responsible for administering all of Lehman’s litigation) reported standardizing on a single review platform for collaborating with all of its law firms, claiming that they initially had “big fights,” but eventually everyone accepted it – probably no mean feat considering the volume of litigation Lehman faces.
  • Another panelist noted that more corporations are taking control of review as well as collection and the earlier stages of e-discovery.  She advised that law firms should analyze legal issues but corporations handle the facts, doing as much review as possible in-house or outsourcing it at lower rates to cut costs.
  • No one on the corporate panel had any major objection to using SaaS e-discovery or storing legal data in the cloud.

Food for thought.  We are wrapping up our E-discovery User Survey this month and distributing results, which will also be included in our upcoming e-discovery long form report – contact us if you are interested in purchasing.  And many thanks to everyone who has participated in the survey.

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