Outsourcing is the rule, not the exception with EDD. We hire electronic data discovery vendors to collect and cull our data; we hire vendors to host our data; we outsource the coding and review functions to third party shops (sometimes in India) to speed the process; and we hire contract lawyers to sit in house and assist us with the review. The American Bar Association Committee on Ethics and Professional Responsibility has just issued a new opinion, outlining lawyers responsibilities in outsourcing. Formal Opinion 98-451, available from www.abanet.org. While not breaking new ground with this opinion, the ABA emphasizes the ethical responsiblities that lawyers and law firms have to supervise the third parties highed to perform these functions. Those duties range from protecting confidentiality of client information (Rule 1.6) to supervision of professionals and non-professionals performing the work ( Rules 5.1 and 5.3).
The bottom line is that lawyers have a duty to make reasonable efforts to ensure that the conduct of the lawyers and non-lawyers to whom tasks are assigned is compatible with the applicable ethical obligations of lawyers.
Because these outsourced service providers are so important to the process, this opinion underscores the importance of carefully choosing the third party providers, thoroughly evaluating what is to be outsourced and continually monitoring the work of the third parties. Therein lies one of the great challenges of finding the balance which is the objective of this blog, namely the balance between effective and effecient electronic discovery and full disclosure of relevant evidence in the litigation.
Tuesday, August 26, 2008
Monday, August 25, 2008
EDD Survival Guide for Corporate Counsel
Though written as the new EDD rules were just taking effect, "E-Discovery Survival Guide for Corporate Counsel" c0-written with my colleague, Jeanine Bermel, still has timely lessons for avoiding some of the traps Tom Allman writes about (see prior post). The full article can be found by clicking here.
An EDD Dilemma
Tom Allman, senior stateman of the EDD world, writing in Daily Report Online, observed that
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
Mastering EDD
The plain reality that litigants are facing today is that the process of retrieving, searching for, reviewing and producing responsive ESI is akin to embarking on an unmapped journey through the Okefenokee Swamp: an uncertain path, unknown hazards and an unreliable itinerary, with only a vague idea where the journey’s final destination may be. There is no turning back the clock to the days before the 2006 amendments to the FRCP emphasizing the importance of electronic discovery. However, borrowing the words of the esteemed philosopher Pogo, in regard to electronic discovery, “We have met the enemy and he is us.” Until we, the participants in the process, figure out how to complete that journey in a way that comports with the goal of Rule 1, FRCP, balancing the need for full disclosure in discovery with the “just, speedy, and inexpensive determination of every action,” the electronic discovery process will continue to be inordinately expensive and time-consuming and will unduly delay the just determination of many actions brought in the federal courts.
The goal of this blog is to identify resources and methodologies which might speed that journey and, as well, to discovery the roadblocks and quicksand that impedes successfully reaching the destination.
The goal of this blog is to identify resources and methodologies which might speed that journey and, as well, to discovery the roadblocks and quicksand that impedes successfully reaching the destination.
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