by Cary J. Calderone, © 2013
I had the pleasure of attending this conference at the Ritz Carlton, Half Moon Bay. The eDiscovery Retreats (formerly Carmel Valley E-Discovery Retreat-www.cvedr.com), were expanded to more locations and re-organized. This two-day event was excellent. There were two tracks running simultaneously that covered the "hows" and the "whys" of e-discovery. There were session topics for the entire range of the EDRM model and there was an excellent Judges' panel that discussed a hypothetical e-discovery case. Readers of this blog know I believe there is no better way to learn about e-discovery than hearing directly from the judges. This panel was no exception and all e-discovery players, whether it is a company that works with an outside e-discovery vendor, or one that may perform their e-discovery in house, learned important checks and procedures so that their efforts will withstand judicial scrutiny.
The Judges' panel included the Honorable Lorenzo F. Garcia, the Hononrable Joy Flowers Conti, the Hononrable Paul S. Grewal, the Honorable Mitchell D. Dembin, and was wonderfully moderated by Anne Kershaw (bio). There was a hypothetical posed for an open discussion of the arguments that could be made at an e-discovery hearing pitting one company, that self-collected, against another company that used an outside e-discovery vendor. Everybody must appreciate that whatever the process a company follows to perform e-discovery, at some point, it is going to be examined for deficiencies. One of the first points made by the judges was that, even though it can be considered, in some respects, attorney work-product, the litigants must be able to validate their process. As one judge noted, where the attorney-client communications privilege is sacrosanct, the work-product privilege is not. Or, as Judge Grewal so succinctly put it in the case of this hypothetical, "It's a loser argument. Move on." Here are a few other takeaways from the Judges' panel:
- There is no privilege as to the facts. Work-product exception on a "need to know basis."
- There was an explosion of data and lack of trust in the profession at the same time.
- The rules were developed with professionals in mind, those who would not cheat opposing counsel.
- If you can't explain it, the Magistrate has the authority to bring anybody in to court to explain it.
- Parties will end up dancing "geek to geek."
- New rules since 2006, but even to this day counsel are oblivious as to their ESI responsibilities.
- You have to show it is a legitimate collection process. You do not have to show you got 100%.
The best conference takeaway for me was offered by attorneys Gordon J. Calhoun (Lewis Brisbois Bisgaard & Smith LLP) and Steven Teppler (Kirk Pinkerton, PA). After watching their panel, "Understanding the Frameworks," I asked them an obvious but important question: "Do you feel your clients are really better served because you are noted experts in e-discovery?" They both emphatically said "Yes!" Then I asked what happens when they run across attorneys who do not really understand e-discovery very well. Again they both chimed in, "we are under no duty to help [opposing counsel] understand it unless it is in the best interests of our clients." Without a doubt this is the best motivation for attorneys and e-discovery teams to become and stay proficient. There is another reason though. As Gordon Calhoun put it, "if people are blinded by e-discovery, then it gets in the way of lawyers effectively handling the case." In other words, there are times, when less or limited e-discovery, will get you more cost-effective results.
This conversation lead to my "ah ha" lesson-on-the-side moment for this conference. Most everyone, from judges to practicing e-discovery attorneys, have lamented that attorneys are not keeping up with the technology and e-discovery rules and procedures. But at this conference I spoke with terrific people from legal departments and e-discovery teams at Google, Chevron, Blue Cross-Blue Shield, Deere & Company, Intel, Altera, and others-or, as we may also refer to them, the clients. When clients recognize the importance of technology expertise and how it relates to e-discovery and litigation results, you can bet that their attorneys will have to as well. After all, it was the clients that got law firms to move towards better computer automation and Microsoft Word from dos-based Wordperfect and even Wang word-processing systems. It was the clients that demanded faster, more descriptive, and more accurate billing programs. It will again be the clients that will require that their attorneys have sufficient technology and e-discovery expertise so that they know the "whys" and "hows" to achieve cost-effective litigation results. It will take time, but as more clients recognize the benefits of working with attorneys who truly understand the capabilities and shortcomings of various e-discovery tools and methodologies, more attorneys will too.
With all the conferences I review, there are a few seemingly simple things that make the good ones stand out. Vendors can be involved in presentations, but they should contribute to the discussions and not merely push their products and services with sales blurbs and talking points. In other words, the event needs to be about educating the attendees. Great moderators, like Browning Marean and George Socha, are as important as having quality panel members. They know how to keep the conversations moving along and will touch on all the important new developments. Lastly, there have to be reasons to attend in person. There were terrific discussions whenever the audience was engaged. I thoroughly enjoyed it when an attorney suggested that the Judges issue more e-discovery sanctions so that clients will be better motivated to take their e-discovery and information management obligations seriously. There were also ample opportunities to network during breakfast, lunch, and at a cocktail event that was held outside on the lawn overlooking the gorgeous coastline cliffs. There was nobody who attended that cocktail event, that would have rather been someplace else! And, as a bonus, they got to learn about e-discovery at an excellent conference too...
For your conference-attending pleasure, there are two more of these events scheduled for 2013 in San Diego and Laguna Beach (link to website).