TEXAS LAWYER ROUNDTABLE SERIES

Transcription

1 Special Advertising Supplement TEXAS LAWYER ROUNDTABLE SERIES ROSS CUNNINGHAM DAVID GRANT JULIE E. GRANTHAM APRIL 20, 2009 VOL. 25 NO. 3

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3 Studies have shown that the average U.S. company faces more than 300 lawsuits each year. Nearly two-thirds of companies have conducted internal investigations. Large companies commit almost $20 million a year to address litigation out of a total legal budget of $34 million. However, studies have shown that only 15 percent of in-house counsel felt that they were well prepared to handle a difficult E-Discovery challenge as part of either a contested civil matter or a regulatory investigation. According to a survey by the American Management Association and the epolicy Institute, 66 percent of companies surveyed say they lack policies for saving, purging, and managing . Because these issues face all companies, Texas Lawyer s Business Department gathered some E-Discovery experts to help answer the tough questions. The following discussion has been edited for length and style. MIKE ANDROVETT, moderator, attorney, owner of Androvett Legal Media & Marketing, Dallas: Julie, if you could start. Talk about who you are and what you do. JULIE E. GRANTHAM, general counsel, Scarab Consulting, Austin: We are a litigation support technology company focused on teaching and helping our clients to be time efficient and cost effective in all phases of the E-Discovery process. To give you a little background about me, I started out as a corporate bankruptcy lawyer here in Houston and spent five years practicing law at two different firms. I then moved to the business side of E-Discovery, and opened the London office for a litigation support technology company. A little over two years later, I moved back to the States and started working with Scarab, first as associate general counsel and now as general counsel. We have offices in Austin, Dallas, Houston, San Antonio, and New York City. My day, outside of normal general counsel duties, consists primarily of consulting with our corporate and law firm clients on a number of different issues related to E-Discovery, primarily how to prepare for Rule 26 conferences; in the corporate environment, how to be proactive about electronic data retention and destruction policies and as well as implementation of those policies. I also work with clients on how to put together an E-Discovery plan that is effective and appropriate for different litigation circumstances. Every case is unique. Therefore, every E-Discovery plan is going to be unique and designed specifically to that situation. ROSS CUNNINGHAM, partner, Rose Walker, Dallas: We are a trial firm. All we do is try cases. And we try them all over the country. Our emphasis is on intellectual property as well as aerospace and aviation related cases. We emphasize making sure that we are proactive and efficient in getting through the discovery process both for our client and against our opponent. We ve learned that if you are proactive and efficient in pursuing your discovery that you can use it to your advantage at trial. I have seen E-Discovery work amazingly well and efficiently, and I ve also seen it turn into a complete train wreck that can derail a case for years on end. DAVID GRANT, partner, Gardere Wynne Sewell LLP, Houston: We manage a lot of litigation. I primarily focus on electronic discovery aspects of litigation. I got into that by accident working in-house at Enron when bankruptcy came along, and we needed to be flexible in our careers and jobs. I was asked to manage the response that Enron would make to all of the investigations that were being conducted by Congressional committees, FBI, SEC. A little known fact, December of 2001 Enron had three subpoenas. By May 2002, there were 101 subpoenas for information requests. And we worked very diligently to respond to all those. And in the process I learned a lot about E-Discovery. At some point all of us realized there was no future at Enron. And I was able to move to Wal-Mart. I tell people I went from the least successful company in the 20th century maybe to one of the most successful and was able to establish the electronic discovery group at Wal-Mart and manage and deal with their great litigation load. And so I m here today to share what I ve learned with you folks in those two capacities, and see if we can share some information. ANDROVETT: We began doing these E-Discovery Roundtables even before the Federal Rules amendments went into effect. I remember in 2005 there were a lot of lawyers who already were into this topic and understood the implications of electronically stored information and were dealing on a daily basis with these issues. However, generally, there was a sense that this was the wild frontier. I ve allowed myself to believe over the years that everyone has gotten more sophisticated. So to my surprise, I come across a blog posting from one of the leaders in this area. He says, Some experts believe that attorney incompetence in E-Discovery is so widespread that it presents a massive ethical crisis across the entire legal profession. Now, clearly you are here today because not only are you interested but you are experts in this topic. I m not asking you to condemn, but give a little bit of a critique. I know later we ll wind up talking about educating judges, for example, but how about your colleagues in the legal profession? GRANTHAM: Well, that s a pretty harsh statement. But I do agree with the spirit of that statement, in that we have to remember, when was the last time you were communicating with someone by dropping a letter in the mail? We just don t do it anymore. If you re going to communicate with someone or there s going to be a smoking gun in litigation or truly relevant information in litigation discovered through the discovery process, it is most likely going to be an , an attachment to an , or some type of electronically generated document. So what I tell my clients is if you re not doing E-Discovery today, you re not doing discovery. Does that border on crossing the line of malpractice as an attorney? That s an open-ended April 20,

4 question. But I do think if you re not exploring the electronic information that s being generated within your client s corporate enterprise, then you are doing a disservice to your client in the discovery phase. CUNNINGHAM: Mike, I agree with the statement that you read. I recently read an article that stood for the proposition: Look, we have ethical obligations, and the rules of professional conduct actually demand that we competently represent our clients. And when you re talking about E-Discovery, if you re going to competently represent your client, you have to know what you re doing. You have to know how to ask your client what they have. You have to know when they say, Oh, we don t have anything that s probably not correct. It s not that they re lying to you. They probably just don t know. So if you re going to the trial lawyer engaged in discovery on a day-to-day basis, you have an obligation to have a minimum level of competence. And you can get that from a lot of different places. There are Web sites out there. There are vendors that are popping up every day that can help you learn the trade, learn the vocabulary, and help you through the process. Like Julie said, she spends most of her day assisting in-house clients and lawyers with the process. We absolutely have an obligation to know what we re doing both in terms of preparing your client to produce electronic discovery and in extracting the appropriate amount of E-Discovery from your opponent. If you re going to prosecute your case if you re a plaintiff, or defend it if you re a defendant, you have to know what to give up and you have to know what you need to go get. ANDROVETT: David, I don t presume to know your experience, but it s reasonable to guess that in the midst of going from a handful of subpoenas to 101, you probably learned a lot about Enron s retention policy and how to identify, amass, collate and cull information. Are there any lessons in your experience to other lawyers about how you get up to speed on some of these issues? GRANT: Interestingly, Enron didn t have an electronic document retention policy. And as a matter of fact, when it went into bankruptcy, there were only four days in the entire history of the company of s that had been retained. That equaled about 10 terabytes. So it was a huge volume. But as investigators were plowing through things and wanting to know what various people had done during the course of their career, there was very little in the electronic area to help them. What I have found is that companies design their document retention, electronic or paper, based on a business need. And that s always a wise policy. It doesn t necessarily help in litigation. The real problem is getting people to coordinate the business need with the litigation need. And, of course, litigation always comes second. Back to your question about how lawyers work with electronic discovery. Most all of the lawyers I ve worked with have always wanted to do a very good job. And they look at their assignment, the case they re working in, in which they re representing the company, and they prioritize their time. Most often, unfortunately, discovery gets put on the back burner. And so while they want to do a good job, and they strive to do a good job, because they don t focus always on discovery, it sometimes bites them as issues arise. But in general people always want to do a good job. It s learning how to do it. ANDROVETT: Is it accurate that when you re getting a subpoena, that s too late to start thinking about some of these E-Discovery issues? That really this is something that starts corporately, identifying your business interests, trying to discern what the legal interest is, and creating some policies document retention comes to mind so that when you hit that flashpoint of litigation, you ve got a system in place? The point I m trying to make is: I m struck in all of the literature and conversations that we ve had about the need to get in front of these things. GRANT: There s a huge need to get in front of them. The motivation is not always there. It seems that the motivation to actually put a document retention policy in place is some sort 2 April 20, 2009

5 E-DiscovEry roundtable - PArt i of emergency. And, in fact, most electronic discovery projects come about because of an emergency. A subpoena is received that affects one part of the company, and while you re working on that, you can also get people motivated to do perhaps an across the board or larger, more expansive document retention or litigation project. But, unfortunately, most of the time I see it coming as a result of some sort of litigation emergency. CUNNINGHAM: As a trial lawyer who has to get up in front of a judge and has to explain why things happened the way they did, I can tell you that most companies do have some form of document retention policy, which is absolutely normal and perfectly acceptable. And the document retention policy, so long as it is based on a genuine business interest, it s acceptable. In my opinion, a lot of clients think that if they don t have a document then their opponent can t beat use it against them. But I tell clients day in and day out, eight out of ten times those documents that you got rid of will probably get you off the hook. And that one or two times that you have a bad document you simply evaluate your case and go settle it early. I see clients all the time that want to set a very quick trigger on their document retention policy thinking it will get them out of the trap. My opinion and my experience is most times it comes back to haunt them. GRANT: I couldn t agree more. And I work for some folks that have very good document retention policies that they enforce that are about a 30-day basis. The problem is, particularly with electronic material, you can never find all of it. And so even though you have a really good policy and in all of the regular places it s gone, but someone stuck it somewhere else. So don t ever think that you ve gotten rid of everything. And I also agree, when I talk with clients, I say, Guys, I know you believe that all of your stuff is really bad. But if you don t find it and if you don t produce it, you re robbing yourself of two opportunities. The first opportunity is to find out what the other side thinks. They may not think the thing s as bad as you think. It probably is. But second, you rob yourself of the opportunity to inform your client at the very earliest possibility of the significance of what s been produced and then take the appropriate action. So I try to talk to them about not hiding anything, but finding as much as they can, producing it as they re required by the Rules, and see then what happens. But I also talk with a lot of clients and say: I know you think you ve gotten rid of everything, but I guarantee you someone stuck it somewhere or they sent it to themselves at home or they sent it to a buddy or sent it to a thing they can carry with them. And most often everything you think you ve gotten rid of is around somewhere. Or it s on your backup tape backed up weekly and monthly. And even though your s are purged every 30 days, they re on at least three or eight backup tapes. So it s there. ANDROVETT: There is a little bit of a philosophical difference in the objectives of, say, the IT manager or the corporation generally and the lawyer who s now brought in maybe to save the day. Many times these storage policies and retention policies are developed for a business interest. Can you provide some guidance on how a business can go about doing its business without turning itself upside down in response to either real or threatened litigation? What are the best practices, for getting your arms around all of this information that you produce and retaining it and purging it and the like? GRANTHAM: That s an excellent question. And that s something that I deal with on a nearly almost daily basis. A couple of things to remember: First of all IT was initially created and conceived out of the idea of disaster recovery. And one of the larger mistakes that is consistently made across corporate America is giving IT the responsibility for also being experts in E-Discovery. Those are two entirely different animals and really have goals that are competing. IT consistently wants to be able to Ross Cunningham, a trial lawyer and partner at Rose Walker in Dallas, regularly manages issues relative to E-Discovery. His practice involves litigation of complex, highrisk cases on behalf of plaintiffs and defendants in matters such as aircraft disasters, patent infringement, misappropriation of trade secrets, products liability, construction defects, catastrophic personal injury, breach of contract, breach of fi duciary duty, fraud and covenants not to compete. His clients range from major corporations to individual inventors and even municipal governments. With more than a half dozen trials in the last two years, Ross has been on the front lines of managing how discovery, especially e-discovery, can affect the outcome of a case. Ross has been repeatedly named to the list of Texas Rising Stars, as published in Texas Monthly magazine, and speaks regularly on E-Discovery related topics. He received his law and undergraduate degrees from Southern Methodist University. April 20,

6 access and re-create any type of information no matter what occurs within the electronic or technical environment of a corporation. E-Discovery is concerned with when is the soonest after a document is created that I can kill or get rid of that document. That s how we are cost effective and time effective when we hit litigation. My suggestion is that you don t burden IT with both of those concerns, disaster recovery as well as preparation in the E-Discovery realm. I suggest that people have a team that can work together: Someone from legal, someone from IT, someone from your outside counsel. These people within your corporate environment will be able to liaison with an outside counsel on E-Discovery matters. But it s also going to be that legal and IT need to work together to be able to come up with a consistent platform, a consistent methodology, in how they approach electronic information within an organization. ANDROVETT: So what does that look like for people who operate businesses and don t have any legal threats or vulnerabilities that they know about, but they ve just heard this discussion and want to do the next best thing? Is it put the IT and the legal counsel into a room and say, "work it out," or is there any guidance for getting two very different sides of the brain talking to one another? GRANTHAM: The first important thing is education. That s going to be really the foundation for any types of discussions. And in our profession as attorneys, I know that when all of us went to law school, and probably the majority of you, E-Discovery was never even mentioned. Today, we are seeing a proactive movement of law schools. I teach E-Discovery at the University of Texas Law School and it is one of five law schools in the nation today that are focusing on E-Discovery. One thing for baby attorneys that s going to set them apart from the new lawyer that s sitting next to them is their understanding and their ability to help partners at law firms and their clients really understand the E-Discovery process and give them an advantage. Within our profession, there is a duty to educate others about ESI in general and how to approach it in the litigation arena. CUNNINGHAM: Businesses have to set certain parameters on how they re going to operate on a day-today basis that is both cost and time effective. Businesses can t run around like chicken little, saying the sky is going to fall, or I might get a subpoena or sued tomorrow, so I ve got to save everything today. A properly functioning business can t survive like that. What I do when I get called or when I know there s a potential for litigation, I sit down with my client as soon as humanly possible and we discuss putting a litigation hold in place, even before we send the letter or notice to our opponent. The business has to be able to operate day-today as if there is no threat, as if they re not going to get sued tomorrow. But the moment that litigation is reasonably anticipated and that does not mean getting a demand letter from a lawyer or getting sued. That means if an employee fell off scaffolding on your job site and he s in the hospital with two broken legs, there s probably a pretty good chance you re going to get sued. So put the litigation hold on right there. You can image all your hard drives or your server or you could just do an immediate tape backup and archive it. There are lots of things you can do the moment that litigation is anticipated that does not prevent the client from running its day-to-day activities in a more efficient format. GRANT: The question was how do you talk to a company that doesn t have a litigation threat about how they can manage their material and be in the best position if litigation or some government investigation or something rolls along. I like to talk to businesspeople and describe to them the cost that is generally associated with E-Discovery. I like to have them look at how they can take some of their internal resources, their IT crew that usually is working very hard all day long to support the business, what it would cost them to take a person there and place them with the responsibility of supporting the legal group versus an outside resource and then begin to look at the cost factors involved. That s when they begin to understand that if they take a guy in the IT department, just one fellow perhaps, and dedicate him to legal support, they might be saving money, and they might be helping themselves in the long run. So that they ll be ready, if litigation comes along and they ve got to hire counsel, they ll be ready. So it is certainly a discussion of cost and benefit. And usually most of them see that taking of a fellow in the IT department and dedicating them to the legal department is very cost effective. ANDROVETT: David, if you can, to flesh this out a little bit. You put this IT person in litigation support. What does that look like? What is that person doing now that the company wasn t doing before? GRANT: If you talk to most outside resources, you are going to find the hourly rate for dealing with E-Discovery to be anywhere from $125 to $300 an hour. So if you have an employee, of course, it costs much less than that. And what they would be doing is starting by an analysis of the source material. Generally businesses have three general sources of material. Data that they create running their business. It could be stuff, like, databases that tell them how much they have in the warehouse. It could be databases that are hourly employee punch-in/ punch-out. All of that business data. Then they have Microsoft Suite documents, s and all that sort of thing. And then they always have a residual amount of paper that needs to be scanned at some point and put into electronic image. So the person in the IT department would be helping them understand those three sources of material and finding the best way to deal with them if they should have to. ANDROVETT: Is it your experience that a client knows where all the information is stored. GRANTHAM: I would say the 4 April 20, 2009

7 E-DiscovEry roundtable - PArt i majority of the time the answer is, unfortunately, no. We have to remember that document retention policies, as great as they may be and as well written and as thoughtful as they may be, are only as good as the compliance that actually takes place. So obviously the second part of the equation is getting your employees to actually comply with whatever document retention and destruction policy you ve put into place. This is important for two reasons: No. 1, when an employee does not comply with the data retention policy that requires electronic information to stay within the corporate environment, work computers, work-issued laptops, work-issued thumb drives, et cetera, you open up a whole world of potential places where responsive or relevant information may reside. Whether that s personal accounts, personal computers, et cetera, which again hikes up your cost in the E-Discovery area. That s probably the most important factor when it comes to compliance with your data retention policies. The other issue with data retention policies and compliance or lack of compliance is that this is a really important topic in front of the Court. The Courts are going to look at the good faith of a corporate entity that s standing in front of them. You may be able to hold up a document retention policy, but if compliance is lack or very spotty, it shows bad faith to the Court. It s not just the attempt to show good faith. It actually shows bad faith in lack of compliance with a policy that has been implemented within your clients organization. CUNNINGHAM: My experience has been that the outside lawyer s contact at the client s office usually does not know where all of their data is. Over the years, with the help of several vendors I use, I ve developed a checklist that I use when I sit down with the client. When I meet with the client, I try to make sure that there is a senior manager or senior management level individual, and the head of the IT department. ANDROVETT: Can you give us some for instance? CUNNINGHAM: You ve got to identify your custodians so you can find out if you need to preserve their hard drives, laptops, BlackBerries or handheld devices, thumb drives, CDs, DVDs. You also want to find out if your client uses a library where they keep old presentations on DVD or CD, do they have instant messaging within the enterprise that is maintained on the server? You ve likely got backup tapes,, you might have remote bases and remote locations with a stand-alone computers. In a manufacturing facility, you might have a stand-alone server or stand-alone series of computers in the warehouse or manufacturing area. If you only told your client, Hey, I need to get all the data off the server from these custodians and one of the custodians is head of inventory, well, he might have a custodial account on the main server, but he might have the welcome to the company , and that s it. Turns out, he has 14,000 s on the computer in the warehouse that he uses on a day-to-day basis. So you ve really got to inquire as to all of the possible locations that someone might be keeping something electronic. You really have to sit down and think about everything. You can t just say, What have you got? Do you have this? Do you have that? GRANT: I agree wholeheartedly. In fact, most of the case law shows, starting with Zubulake, that attorneys have to inject themselves into the process sufficiently. First, to make sure they find everything. Second, to make sure that if the stuff s there and it s going to be the subject of discovery that it stays. ANDROVETT: Is there a higher burden on lawyers to know the lay of the land, to ask the right questions of their clients? GRANT: Absolutely. That s the one lesson that has come through all the discovery cases. It is that it s not, perhaps, as it used to be, easy to talk with custodians and say where are your files and they point to a file cabinet and that s it. Most often custodians don t understand the technology that they re David Grant, director of electronic discovery at Gardere Wynne Sewell LLP., obtained his experience in all aspects of e-discovery at Enron Corp. and Wal-Mart Stores Inc. While working at Enron Corp., he supervised the development of internet based litigation databases for management of multi-party cases. In 2001, he managed the company s response to the growing number of high-profi le investigations. Grant quickly established companywide electronic discovery processes that enabled the company to provide complete, professional and consistent responses to the numerous governmental investigations conducted by the SEC, FBI, DOJ, FERC, numerous committees of the U.S. Senate and House of Representatives, and countless civil actions. In 2004, Grant joined Wal- Mart as the senior associate general counsel responsible for class-action discovery. There, he developed and implemented a discovery solution that successfully addressed both the legal and technical aspects of the company s nationwide discovery obligations and established compliance with the new federal rules on electronic discovery. April 20,

8 using and can t point you exactly to where all their stuff might be. So that s why it takes a coordinated effort with the IT department. And sometimes you run into circumstances where a company has outsourced their entire IT department and it s with a third party. And that presents extra challenges, but certainly lawyers today have a higher burden or greater duty to investigate. ANDROVETT: In light of this and 50 billion s being generated a day, how does a company ever get their arms around this? Talk about retention policy a little bit, because one thread we re going to explore going forward is how do we start reducing those costs? GRANT: There s going to be a physical limit to the amount of stuff that s available, and that s based on the equipment the company owns. And certainly one of the first things you would do is work with the IT department to find out what physical equipment the company has, what it s been used for, and whether it, in fact, will have potentially responsive material and then go from there. The first start is to identify, literally, the equipment the company has. AUDIENCE MEMBER: Ethically, what do you do or what do you suggest we do when you start getting push-back from general counsel or from the CEO who thinks because you re making the inquiry you re making that it is unnecessary expense and that the law firm doesn t need to deal with this. I m sure all of us have had that experience. And I am constantly concerned with my ethical responsibilities as to how to impress the client with the importance of this and how to get through to him this is not just running up the tab. GRANT: That s, of course, a very delicate position to be in. A suggestion would be to take a couple of the decisions like Morgan Stanley, QUAL- COMM, Broadcom, and say: I know it s difficult to understand the implications in the short-term. I know that your guys have lots to do during the day that doesn t include supporting litigation. But it s really important. And here s what happens if it doesn t work well. For example, Morgan Stanley where in-house resources were called upon to work with outside counsel. And it didn t work right. And in the end there were huge sanctions. QUALCOMM, Broadcom, something similar, where the lawyers didn t get all that they should have and got huge sanctions. And it s probably a discussion that obviously you haven t dealt with in this fashion, but the bottom line being, if you don t let us work very closely with you, we could all be looking at terrible sanctions. GRANTHAM: QUALCOMM is an excellent example of the fact that it is not only sanctions that should be a concern for us that are lawyers and that act as outside counsel. QUAL- COMM was a clear example of lack of communication and miscommunication between in-house counsel and outside counsel. But, again, it s not just sanctions that we re concerned about. It s also professional responsibility. The outside counsel as well as some in-house counsel for QUAL- COMM was actually called before the disciplinary board in California, with the potential of losing their law license. So it s important to remember the ethical considerations are great. And courts are coming out with decisions that underscore that. We will see more of that as we move through 2009 and CUNNINGHAM: What a great question. It is a sensitive topic if you get that push-back from the client. And it s happened to me. The client said, We don t want to spend the money. We don t have the resources. And just like they both said, you counsel your client on the potential pitfalls of not doing it. If they continue to push back, you have a bit of a dilemma 6 April 20, 2009

9 E-DiscovEry roundtable - PArt i yourself. Do you stand your ground? Demand that the client do it, risk losing the client and getting fired? You have to strike a balance. There s no easy answer. You probably know that already. There is no easy answer. You have to counsel the client on potential pitfalls and sanctions that may be levied upon them from monetary sanctions to a dispositive death penalty sanctions, such as striking your client s pleadings. And then, just like Julie said, the lawyers themselves, depending on the level of culpability, the lawyers themselves may get sanctioned or disciplined depending on how things go down. So there is no easy answer. You just have to try to do your best to reach an accommodation with the client that will also satisfy the obligations of the case. ANDROVETT: As the cases evolve, do you see the possibility that a duty will arise that a lawyer will be forced to resign from those kind of cases where they don t get cooperation from the client? CUNNINGHAM: I can certainly see that. Depending on the level of concern from the lawyer s perspective, so long as it doesn t disadvantage the client and it s not too late in the game that he could actually withdraw and get replacement counsel, that could happen. GRANT: There are a couple of reported cases of counsel withdrawing because one of two circumstances: They realized they weren t getting the full picture in discovery or they got the full picture in discovery, and it wasn t the picture the client wanted to present in discovery. But I believe there are a couple of reported cases of withdrawal. AUDIENCE MEMBER: It s so expensive and so voluminous in a project that plaintiffs and defendants are just folding their cards and saying, Is this worth all the money or can I get away with just settling? And a lot of times you shouldn t settle a case, but because of the cost of E-Discovery, it s becoming that way. Can you tell me a little bit about early settlement? GRANTHAM: That s a fantastic question for a couple of reasons. First, this again is where I have to say education is very important. It puts you, as the lawyer, whether you re a plaintiffs lawyer or a lawyer representing a defendant, in an offensive position, especially before a Rule 26 conference, if you understand E-Discovery. I ve noticed in my consultative practice that the settlement bar gets raised very quickly by plaintiff attorneys when they find the Achilles heel, E-Discovery, in a defendant. Too many times I m seeing E-Discovery issues becoming ancillary litigation that makes the cost of litigation skyrocket more than it already does. So if you re able to go in, whether it is to a Rule 26 conference or any kind of potential settlement negotiation, and discuss very clearly and effectively what the E-Discovery costs are going to be or be able to argue that you re not going to be able to get this electronic information because under the case law and the Federal Rules, that s going to be considered inaccessible data. So I m not going to have to process these backup tapes or present it and give information, produce information, from this type of media, et cetera. You can pull that settlement bar down. On the flip side, if you re representing someone and you want to push that settlement bar up to begin with, ground zero can start at a very expensive level for E-Discovery, especially if you re knowledgeable about it and you re working with someone that is not. CUNNINGHAM: E-Discovery has absolutely become the new thousandpound gorilla in litigation. On cases I ve worked over the last three years, it has caused the the cost of the case budgets to skyrocket. It s ridiculous the amount of money that so quickly get generated on an E-Discovery case. What I don t see clients and lawyers doing very often is if they get a discovery request that is massive or leads to a massive set of E-data, is seeking cost shifting. I have not see it happen very often. If you have an oppressive set of discovery served on you that leads to a massive amount of data, it behooves you to seek cost shifting from the Julie E. Grantham is general counsel at Scarab Consulting. She is responsible for all legal matters involving Scarab and has supervisory responsibility over corporate litigation matters. She also serves as consultant to many of Scarab s corporate and legal clients regarding E-Discovery internal matters, data mapping, IT infrastructure, and litigation preparedness with regards to electronically stored information. Grantham speaks nationally on E-Discovery, forensic, and data collection matters. Prior to Scarab, Grantham opened the London offi ce for LIT Group and was director of the offi ce for two years. Grantham attended the University of Texas at Austin on a Texas-Ex Scholarship and received a B.A. in English. Following college, she attended DePaul University College of Law on The Dean s Scholarship and received her J.D. Grantham is an Adjunct Professor at the University of Texas Law School teaching E-Discovery and technology law. She is a national board member of the Women in E-Discovery organization and is the founding member of the Central Texas Chapter. April 20,

10 Court. For example, all you need to do is approach the Court and say, Court, the document requests that the plaintiffs have served is going to lead to terabytes of data, which is the equivalent of millions and millions of pages of documents that we anticipate will take months to review for privilege and is going to cost hundreds of thousands of dollars just to OCR it and produce it. And so you can ask that the Court shift the cost to the plaintiff or split it somehow between the parties. When doing that, you have to prepare for that like it s a trial. You go get a vendor or an expert, and you present testimony, documents or data to support your cost-shifting request. You should go in with a game plan and show the Court exactly why it is so expensive and why the cost should be shifted. Too many times lawyers just want to say, Well, gee, Court it s going to be expensive. Can you shift that cost to the other side? And the Court says, I don t see anything where you re telling me exactly what it s going to cost. There was a decision just last week where the lawyer said, It s going to cost 200,000. And the Court said, I don t see any evidence of that and you re estimate is high. So I m not going to shift the cost. Cost shifting is one of those little used tools that can help streamline the scope and burden of discovery because most times it forces the other side to whittle down their discovery requests. They ll say, Okay, look, we ll revise. We re working with you. We ll scope it down. GRANT: Absolutely. These days when people talk about early case assessment, that often means simply understanding the liability risks. But I also believe it s got to incorporate an assessment of the electronic discovery cost. Every client at some point will say, What the heck is this electronic discovery and why does it cost so much? And there are a number of factors that go into it. And you can get with a very good E-Discovery support group, and they will help you understand almost exactly what it s going to cost, based on the type of material you have, based on the kind of requests you have and the kind of final product you want to deliver to the other side. They can help you understand the cost at any stage. And it s got to be a part of early case assessment. So you can, if you need to, go to the Court and seek some relief. ANDROVETT: Ross, you had mentioned the third-party vendor. I would imagine that all vendors are not created equal and some vendors are better for certain kinds of assignments. As a general proposition to offer assistance to us down the road, can we develop any sort of best practices for engaging a vendor, what we re really looking for and what to look out for? CUNNINGHAM: Yes. Much like David said, you should meet with your client s IT professional at least three times. If your firm does not have a preferred E-Discovery vendor or an exclusive account with someone like Julie s firm, then I would recommend you meet with two or three vendors and ask them questions and ask them what they would recommend, what their scope is and what their cost would be. When defending my client s position in front of the judge the thirdparty vendor I am working with becomes my security blanket. I like to bring them in early to assist both me and the client. Whenever I can get the client to agree to it, I like the third-party vendor to capture the data, to process the data and to question the custodians so that it takes both me and the client out of the middle. And they can tell the court, yes, we re the professionals. We do this day in and day out across the country. We know what we re doing and it was done properly in this case. And oftentimes these third-party vendors will show up and have to testify or offer declarations or affidavits in support of what happened. Bringing in a vendor early puts a layer of protection and security in there because they know what they re doing can help minimize the opportunities for your client getting in trouble for improperly capturing data. ANDROVETT: And based on your experience, what do you look for to make that determination that that vendor knows what they re doing? CUNNINGHAM: Time on the market, how long they ve been doing it, what s their pedigree, what s their client list and who have they worked with in the past. It takes four or five questions asked of the vendor to know whether or not they know what they re doing. I can t give you a straight answer on which vendor is best for which case. You ve got to know your client, you ve got to know your case, You ve got to know your judge and you ve got to ask a the right questions of the vendor. GRANT: I agree a hundred percent. The best thing you can do is establish 8 April 20, 2009

11 E-DiscovEry roundtable - PArt i a relationship with a very good vendor and help them learn your business and your clients so they can do a good job. Most IT people are very intelligent, and very sharp, but they have one word they like to use over and over again. And that s the word no. No, we don t have that. No, you don t need that. No, we re too busy. No, we ll get to it later. And if you re looking at a vendor, find the vendor that can build a relationship with the IT department so that you can overcome the no. The client relationship that you have and the relationship that the vendor you hire with your client, that relationship is just as important as the one that you have. So find a vendor that has great client skills and can overcome the no. And find a vendor that has excellent project managers. I don t care whether it s a national company, a regional company, a one-city company. It doesn t matter what the size of the vendor is. The project manager is the person that s going to make or break your case. Interview them, test their client relationship skills, and understand they re going to be dealing in a department that has a lot of really smart people, but often use the word no, probably a little too much. GRANTHAM: Three primary examples of items you need to be looking at when you re looking at vendors: No. 1, you need to remember that there s no silver bullet. There s no solution that s going to work in every single case-by-case situation, so it s important to work with a vendor that tends to be technology agnostic. There are all types of technologies out there from processing to collection tools to review tools and there s not one that s going to be the perfect solution in every case. The second thing is make sure you re comparing apples to apples when it comes to pricing. At some point in the future there will be guidelines that are requirements in this industry, but right now there s not. People can price things the way that they want to price them, whether it s by gigabyte, by page count, by custodian. So make sure when you collect bids from different vendors that they are like priced so that you are able to accurately and fairly compare what prices you re getting from different vendors. Thirdly, as we move more into the realm of online review and hosted reviews, make sure that you take a good look at a couple of different platforms and you really understand the ins and outs of those different review platforms. I say this because we re all individuals. And what may be an excellent platform for me to review information in and what I find very accessible and understandable may look like DNA on a screen to someone else. So make sure that you re comfortable with the review platform that your vendor is selling to you. And if you re not, ask to look at a different one. GRANT: I agree wholeheartedly. Those are perhaps the three most important things you can learn this morning. And try to find some folks they ve worked with before. The point about comparing apples to apples in pricing, one of the things we always hear from clients all the time is why the heck does this cost so much? And you can hand them a price sheet from a vendor, and it won t mean beans. You ve got to spend some time to understand what processes are costing what amount. And then take the price list from various vendors and you can see that there is no apple to apple comparison. And then you can go to your client and say: Look, these things are crazy. But they re really trying to accomplish X. Let s see if we can get the price of Y for them. ANDROVETT: Drawing on your earlier advice about ways to control litigation, getting in front of it, the retention policies, going through those price lists, can you identify for us just generally what are the things that cost the most and cost the least? And about whether that lines up necessarily with the legal importance of each line item? GRANTHAM: Hands down, attorney review. And that can be controlled by the amount of data that s actually put in front of attorneys, whether it s outsourced attorney review or in-house attorney review. ANDROVETT: So you re collecting all this data? Mike Androvett is in business to make sure that his lawyer clients get positive news coverage and their law fi rms are marketed effectively through advertising and public relations. Androvett is the founder of Androvett Legal Media & Marketing, the largest public relations and advertising fi rm in the Southwest exclusively devoted to lawyers and the legal profession. Established in 1995, Androvett Legal Media serves the specialized needs of law fi rms in communications with outside audiences, including news media coverage, brochures and Web sites, and sophisticated advertising of all kinds. Androvett s fi rm assists lawyers in virtually all areas of practice while observing the highest ethical standards. Lawyers and their clients who receive media training from Androvett Legal Media are much better prepared to deal with reporters and TV camera crews. And, as a former chairman of the State Bar of Texas Advertising Review Committee, his expertise and experience is essential to fi rms seeking to comply with the state rules governing lawyer advertising. Androvett and his team take the mystery out of public relations and advertising by recognizing law fi rms true goals and providing the know-how to make them happen. He can be reached at or mike@legalpr.com. April 20,

12 GRANTHAM: You collected all the data. You ve got this large data universe. There are two things you can do to make attorney review less expensive. The first thing is, obviously, it s an in and out rule. The less information that s actually coming out of the E-Discovery collection process the attorneys physically have to review, the less expensive it s going to be. Secondly, I m a wholehearted advocate of outsourced attorney reviews for large pieces of litigation. First phase review done by outsourced attorney review groups is a great way to initially save cost and expeditiously get through large amounts of information, when you re faced with that situation. ANDROVETT: And, Julie, outsourced to whom? GRANTHAM: There are a number of different vendors that have excellent outsourced attorney review groups that they can put together. And, again, like I said before, there s no silver bullet. One group of contract attorneys doing an outsource review may be very well versed in the healthcare industry or in oil and gas. If it s a patent litigation or trademark litigation, you may want a different group of contract attorneys. So it s very case dependent. CUNNINGHAM: This is intertwined with a 26(f) conference and preparing for a 26(f) conference. You can easily grab a terabyte of information from a medium-sized company, if you say, Give me everything. On the other hand, if you work with the other side to identify applicable date ranges, custodians and/or key words that you will agree on, it is much more likely that you re going to capture only the potentially relevant data instead of all of the data. You can always go back and reinterrogate the sequestered data if you need to. But getting with the other side and working out a reasonable list of search parameters that you can then use to cull down your data, that is, in my opinion, the easiest way to cull down the universe before producing it to the other side. I don t disagree with Julie, but our firm takes a different approach on document review. We like to ensure that the trial lawyers, the ones that are actually going to be taking the depositions and the ones that are actually going to be in trial to be intimately involved with the review the documents. Now, we may have a host of lawyers that do the first-level review, but we make sure that our trial lawyers are actually involved with closely supervising and directing the review the documents. And Julie couldn t be more right. Attorney review, attorney time is absolutely the biggest cost related to E-Discovery or any discovery for that matter. GRANT: What I ve seen is, in litigation in a particular case, about 80 percent of the cost is in discovery. Of the 80 percent, 70 percent is lawyer stuff, 30 percent is technical stuff. That can, of course, change depending on kind of the case you have. The technical might creep up if it s tons and tons of data. Of the 70 percent that s legal, most of it is attorney review. When I was at Wal-Mart in setting up our E-Discovery group, we decided to use contract attorneys for review because quite frankly we had millions and millions and millions and millions of pages to look at. And we did a survey of most of the major metropolitan areas in the United States to determine where we could find the best qualified review attorneys at the right price. Turned out it was Houston, Texas. And it also turned out that you need a city in which there are also facilities that would house review attorneys, and that requires Internet and electricity. So you have to have a building with a very good infrastructure. As we searched through the available real estate in Houston to house our review attorneys, ironically it turned out to be the Enron building. And ironically it turned out to be the floor two floors down from where I had my previous office. We started with 35 attorneys in December of 05, and as the caseload grew, we got up to 175 contract attorneys working basically 10 or 12 hours a day because we had such a mass of material to go through. Now, I found a couple of things out in that process. First of all, the review attorneys were very, very, very sharp and very dedicated. They become subject matter and custodian experts. Within about a week to a week and a half of looking through a batch of materials, you can go to them and ask them questions like: Hey, this issue has just come up. Have you seen anything about it? And they ll tell you like that. So when people talk about reviews and sending the material to offshore somewhere, that probably helps in cost, but you lose the opportunity to meet with and communicate with attorneys and take advantage of the expertise they re gaining. I also found out that the review attorneys were very sharp and could anticipate issues coming up. If they start with one issue and they re reviewing the material, particularly communication, communication or presentations that were on that issue, they will understand another issue is going to pop up right beside it, and they ll begin to start to tell you about the documents that they re finding in that. The attorney review can be very expensive. It can also be managed, 10 April 20, 2009

13 though, very well. The benefits gained are extraordinary. And if you re going to trial, you do want the trial attorneys taking the depos to look at the material, generally there is so much, that the most economical way to do it is to have contract attorneys look at it first, identify those things that are important, and then turn it over to the trial team. GRANTHAM: I d like to make one more comment to address what David was saying earlier. It s also important to remember as attorneys that we re not asking you to lose review hours. Obviously, especially in this economy we are concerned about the billable hour. Does outsourcing attorney review or hiring contract attorneys to do that first phase review cut into the amount of time that you re going to be able to spend billable time for reviewing documents and information? I would resoundingly say no. If you can get the amount of documents down to actual relevant information, you can spend the same amount of time reviewing that information, but at least you re reviewing relevant information. You re not spending 70 to 80 percent of your hours on documents that are irrelevant, that have to do with Johnny s baseball game next Saturday. What is the point of spending time and your client s money in reviewing that information? Spend the same amount of time on the documents, but make it worth your while. And make it a relevant and costeffective review. ANDROVETT: As you go through the Rule amendments, it certainly legitimizes the requirements to produce electronically stored information. And as you get to meet and confer, at least implicit, really more explicit, is this mechanism to give some order out of the chaos. We ve had a few years now to actually see how the meet and confer aspect of the rules is working. What s your general impression? Is it an absolute given that you have to bring either an outside vendor or an IT expert to that meeting? Are you finding that the lawyers across the table are really prepared to do the kind of hard work implicit in the Rules? And are they working? CUNNINGHAM: My experience has been that it s still kind of a detente between the lawyers doing discovery. What litigators and trial lawyers know about and appreciate about E-Discovery is still in its infancy. My experience has been that the large majority of the 26(f) conferences that I ve participated in have been kind of, Hey, we re going to do E-Discovery, right? You bet. Good. So how many depositions are we going to take? And unfortunately, I have seen very little in the way of detailed discussions, and back and forth, about the scope of E-Discovery. ANDROVETT: Does that give you a tactical advantage if you come in and have your ducks in a row? CUNNINGHAM: Absolutely. A lot of times it s six months later after discovery has started and your client and you are choking under the time and expense of having to deal with what you asked for, the old be careful what you ask for, you just might get it, document dump kind of deal. If you handle it on the front end it could make your life a lot easier. And I ll tell a war story on myself. In my standard discovery, my definitions and instructions, I request that all data be produced in native format. A month after I sent out my discovery requests, we had the case management conference. The Court issued the case management order, and one of the notes in the order stated that all documents would be produced in searchable TIFF format. And then later on, a year later, when the other side was producing spreadsheets in searchable TIFF format that were effectively worthless, we said we want them in native. They said, No, the case management order says searchable TIFF. So we had a huge battle over that. So my advice is, take your time and make sure that you are doing your job and crossing the Ts and doting the Is. GRANTHAM: There are seven issues that under the changes of the Federal Rules of Civil Procedure are mandated to be addressed at a Rule 26 Conference. I ll go through them for the benefits of your readers, since I m sure that will be helpful. The first one is the scope of preservation. How wide a net needs to be cast and will be cast for preservation of electronic information within each respective side s environment. Secondly, the sources of inaccessible data. The better you can argue for your client about what is inaccessible, April 20,

14 which I mentioned earlier, perhaps it s backup tapes that will cost X amount to process and produce, perhaps it s information that was created by a legacy system that will need to be recreated in order for that information to be read and produced. ANDROVETT: And that s basically software that GRANTHAM: That doesn t exist anymore. Perhaps it s accounting software that your company used five years ago or ten years ago that you don t even have a copy of anymore or you don t have a license for. Perhaps it isn t even in existence anymore. Thirdly, the scope of production: how much information is actually going to be produced? And, fourth, this goes along with that the former, forms of production. What form are you going to produce that information in? Just like Ross mentioned, are you going to produce them in native format, in TIF format, PDF format, what type of load files, which means simply what type of production format or packaging needs to be asked for in order for you to be able to cost effectively load it into a review platform. Fifth, the privilege issues. These need to be addressed at the Rule 26 conference. This hasn t changed since we dealt only with paper, but it s an important consideration in light of the fact that electronic data is created exponentially in comparison to simply paper days. Do you need to enter into a claw-back agreement, which I highly recommend. Especially when you have large amounts of data that is being reviewed, there s more of a likelihood that something that is privileged is going to slip through the cracks and you want to be able to ask for that back and not have it used against your client in court. The sixth point that is mandated by the Federal Rules that needs to be addressed is cost shifting and cost sharing protocols. We discussed that a little bit earlier. And, finally, protective orders. Again, many of you deal with clients that have trade secrets and confidential information and you want to make sure that, at the beginning of a case, any protective orders that need to be entered into are done. GRANT: Ross s experience is on par with what I ve seen. Most of us always nowadays look at the case and say, What s this case about? It s not about discovery. The case is about something. It s unfortunate that discovery often plays such a big part of it. But really when we re thinking about the case developing and talking to the clients about strategies and all that sort of thing, it s really what is the case about.? And discovery becomes the side show. Then what we re talking about today (E-discovery), unfortunately, it sometimes drives the cost, and it steals the focus when things go bad. But all that points out is that it s not often focused on early enough. CUNNINGHAM: Yes. And for the 26(f) conference, like Julie says, you have to be able to go in there and talk about those seven things at minimum. All of a sudden you weren t a defendant and you weren t expecting any litigation and the next thing you know your client calls you and says, We just got served. Different federal courts have different time frames, but you can expect that within the first 90 days or so, the Court is going to want the Rule 16 report. So you ve got 90 days to get with your client and understand: Do I have 10 custodians I have to worry about or 400 custodians? Do I have offices in six countries or one city? Am I talking about 14 gigs of data or 14 terabytes of data? You ve got to sit down and understand that with your client and help your client understand that so that you can go to the 26(f) conference and say, I need cost shifting or I won t produce this or I ve got backup tapes that will cost on average $14,000 per tape to restore and load and search, which we consider to be not reasonably accessible. You can t wait until the request comes in, if you need to ask for certain relief then You ve best deal with it very early on. ANDROVETT: Who do you take with you in the meet and confers? GRANTHAM: I don t recommend bringing a vendor representative. I do recommend having them accessible by telephone. But I am of the belief that having someone that is a vendor representative actually participate in a Rule 26 conference opens up some issues for them potentially being called to trial as a witness. So, again, I would recommend them being accessible so that on breaks if you have questions or something was discussed or terminology was used that you re unfamiliar with that you can have someone you can discuss that with. GRANT: I would say you need to take a smart lawyer. CUNNINGHAM: I would say take an 12 April 20, 2009

15 outline in your pocket and have your vendor on speed dial. ANDROVETT: I want to circle back and talk about this tension between data privacy and discovery of electronically stored information. There is healthcare legislation, but also as companies become more global. You re running into this when you re doing discovery in European nations, such as Germany and Austria and the like. Can any of you just touch briefly on that tension and where you see the trends going in that area? Who trumps? Who wins that battle? CUNNINGHAM: From my perspective HIPAA wins. I m not going to do it. And a lot of times I ll tell the other side: Look, I m going to err on the side of redacting HIPAA-related information. We re not producing it. If you feel it s relevant and we get there, we need to go to the Court to get an order. I haven t had a case in the last five years that did not have a Protective Order in place before discovery started. That offers one level of protection. You can restrict with multi-level protective orders, attorneys eyes only or management only, that kind of thing. But when it comes to HIPAA-related information, personal privacy related information, Social Security numbers, birth dates, anything health related, our default is redact it out. A lot of times personnel files will be relevant to discovery, so you ve got to produce the personnel file, but you need to take certain steps to either withhold certain pages or redact out certain information. GRANTHAM: It s important on a global scale. I ve managed a number of situations living in Europe where the Data Protection Act comes into play. So it s important as a lawyer that if you are dealing with litigation that has cross-border litigation, litigation that s asking for information from the EEU, anywhere really that s outside of the United States, you spend that extra time or ask questions to someone that has more expertise in that area to understand what personal information you can access, produce, and disclose. What can we not bring out of particular countries? That s a very important thing to remember as well, and does play into your E-Discovery plan. If there s information that cannot leave the country because of their protection laws, you re looking at having to set up a server and a review team in that particular country. These are important issues that can get very detailed, so the most important thing is talk to an expert. GRANT: The privacy issues, particularly for a multi-national company, are very challenging. And they don t often align with technology. For instance, a company that has headquarters in the U.S. but operations in Germany and England and Japan, hopefully have business units in each of those countries that have taken care of the IT function. But the IT can also be within the United States. So you can run into circumstances where you have European operations being conducted in Europe or in Asia, but the actual data is sitting in the United States. And that would be a nightmare. And under that circumstance you would certainly need to consult an expert. I m not volunteering. For information on events and sponsorship opportunities, contact Deni Ruddy at , ext April 20,

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