What Happens At The Exchange, Stays At The Exchange

by Cary J. Calderone, Esq.

Not really.  But after spending a full day at the Executive Counsel Institute's E-Discovery Exchange I find myself not wanting to reveal much about what I learned.   In its second year in San Francisco, The Exchange had approximately 4 times more participants (120ish) and that is good because it is the audience participation that makes this format shine.   We have all experienced the usual conference.  A panel of experts, curated by a vendor, discuss some of the people, processes, and technology, used to deal with the session topic, in the way the vendor believes is best or, at least, best for its product.  By the end of the day, or even the hour, it can be both dull and disappointing.  This is especially true if you happen to be someone who keeps up with the industry on a regular basis and was in search of more unbiased information.  The Exchange is different.


The Exchange has moderated discussion topics, but the audience adds real-world examples of real issues they have encountered-or are encountering via email during the session!   The end result is far more unbiased and useful best-practice tips.  And, because of that, I feel like my typical style blog post recapping these tips, would be violating the code and spirit of The Exchange.  That said, those in attendance, did learn more about dealing with a few very important items, like:

• 2011 was a slow year for newly reported cases and legal developments.
• Addressing the unknown in Cloud services.
• Recognizing you are already using Cloud services.
• Not-so-secret gaps in your company's information management policies and procedures.
• Lack of clarity-what does "reasonable" mean and how to use it to your advantage.
• Consultants do not seem to worry about the unauthorized practice of law, but they should.
• How to work best with ANY outside e-discovery vendor.

I will reveal that it was Christian Lawrence, CEO of SFL Data, Inc., that generously gave what I thought was the best tip on that last item.  Corporate representatives who might deal with any e-discovery provider benefited from his comments.  In brief, Christian explained that there are things you can plan for based on your experience, and then there are always new things that come up.  The communication back and forth, which is often challenging due to the high-powered and high-pressured people involved, is the secret to achieving great results.   Getting both sides' outside counsel, in-house counsel, in-house personnel, and your vendor(s) to communicate and work together is critical for good results.

Bill Kellermann, Jr., Director, Electronic Discovery,  Wilson, Sonsini, et al., made a point that changed my way of thinking.  This is a pretty rare occurrence!!!   Readers of this blog know I get frustrated with attorneys who refuse to learn technology basics, even though technology is now fundamental to discovery practice.   Bill pointed out that lawyers can be talented at using technology in their practice, without ever learning about the file structures of their iPhones, iPads, and office storage networks.   It is for this reason most lawyers should, and usually do, stay out of the data collection business.

Robert Brownstone, Technology and E-Discovery Counsel, for Fenwick and West, and one of the moderators, agreed with Bill, even though his firm is one of the very few that has successfully built an Information Management practice.  Fenwick and West has performed proactive data analysis, mapping, and collections, for years.  They are one of the few firms I would recommend to perform E-Discovery for clients, especially since I think when a firm is expert in this area, it is a genuine litigation advantage.  In most all other law firm instances, managed services is the way to go.   Time for one of my personal admonitions.  Every law firm and company legal department will come across small matters they need to be able to process in-house, and large or unfamiliar matters where they need to bring in an outside vendor to handle it.   Have you planned for both scenarios?  Do you have the people, processes, and technology, in place?

The moderators, rounded out by Browning Marean III, Senior Counsel, DLA Piper, and David Kessler Partner, Fulbright and Jaworski, (links to all moderators below) are all very highly regarded industry veterans, but you get the sense that they enjoy letting the audience talk and that they also learn a great deal about the e-discovery challenges companies face on a daily basis.  During the session breaks for coffee, or lunch, people actually interacted with one another and followed-up on the session comments with questions or stories of their own experiences.  It is in these somewhat private chats that I learned and revealed some of the most valuable nuggets which is the reason I would feel uncomfortable disclosing them here.   E-Discovery is still relatively new, but it has matured some.  Based on what was shared at The Exchange, we may all understand how to handle it a bit better.      

The Exchange will be at many cities throughout the country (Chicago - June 5-6, New York - July 16-17, Houston - September 18-19, and Los Angeles - December 6-7).  For more information go to www.executivecounselinstitute.com.  Although it is described as a program for general and corporate counsel, if you are one of the "hands-on" people at your company, whether you are the CEO, CTO, CFO, or a leader of an Information Management or E-Discovery team, you should benefit from participating.  

Link to Exchange Moderators