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    Hot Topics for Corporate Counsel from Georgetown Law Advanced E-Discovery Institute

    Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Hot Topics for Corporate Counsel.  The panelists are Dennis Browne (Capital One), Courtney Ingraffia Barton (AOL), Jay Brudz (GE), Dawson Horn, III (Tyco International), and Pamela C. Williams (WellPoint).  Mr. Browne is the moderator.

    Evaluate and Implement Automated Litigation Hold Tools

    WellPoint:  WellPoint is the largest Blue Cross – Blue Shield company with 40,000 employees over 14 states.   The company is still working on putting in place an automated litigation hold tool.  For now, WellPoint is using a home-grown solution based on its HR tool, PeopleSoft.  “It’s challenging.”

    The benefits of an automated lit hold tool include making sure that the company stays on top of employee moves within and in-and-out of the company and keeping track of which holds are still in place.   HR is not keen on educating employees on day one about litigation hold, so lawyers must find another way to educate workers and to automate the process.

    Q: How do you deal with the challenge of uniquely identifying custodians given similarities in names?  Names are not a unique identifier; you have to use unique identifiers such as numbers.   You need a bright line, especially where an employee moves from company to a vendor.  GE: lawyers should stop complaining about having to use employee ID numbers instead of names.    Need to mind the actual implementation of holds when lawyers or business people reel off names and someone else has to put names into a system because of the number of duplicates or near-dups.

    Q: How do you train users / custodians to comply with hold obligations.   Training is key.  Do training only for those users subject to it – much easier.

    Discussion of insourcing versus outsourcing on litigation hold and early case assessment.  Factors to consider:

    • amount of litigation,
    • the character of litigation (i.e., is it complex or serial),
    • existence of data maps,
    • balance of power within the corporation (i.e., does legal, IT, or procurement have more power),
    • sophistication of IT group and what is their bandwidth,
    • who is on, how big, and how sophisticated are your of outside counsel,
    • volume and structure of data, and internal resources / capabilities.

    Evaluate and Implement Automated Indexing Tools

    Many factors also drive decision to acquire and implement an indexing tool, similar to the ones above.  One advantage of doing it inhouse:  once you know what’s involved in processing your own data, it’s magical how vendor prices go down.

    A couple of inhouse counsel audience members are running e-mail archiving systems.   Brands mentioned include Zantaz and EMC.   AOL reports that its e-mail archive does not work that well for early case assessment. WellPoint reports that it uses archive to test search terms for culling data.   Audience member says that with data volume today, key word testing has to be interactive – it no longer suffices to just get a report of hits.  Tyco rep says lawyers must be involved in this process – they cannot just delegate away.

    In addition to the technology, companies must have a process and know-how to use the tools.   Layered on top of this, you need project management skill and discipline.  AOL rep thinks EDD professionals have not emphasized project management enough.

    Discussion of resources and governance for litigation holds.  AOL has a cross-functional team, spearheaded by head of litigation.  Audience poll shows that there are a few EDD specialists in the companies attending.  [RF note: we should assume attendees are self-selecting group and not representative of corporate America.]   Outside counsel from Patton Boggs reports that most of her corporate clients don’t have clearly defined management structure or process to manage litigation holds and searches.

    New Outside Counsel and Vendor Interactions

    GE: As a consumer of EDD services, the main differentiator of vendors is their project management skill.  Unfortunately, this is hard to evaluate without retaining a vendor.  Starting to see a new market for legal project management.   But does not want a new layer of cost for LPM.

    GE: wants to know how good a job we are doing on document review.  Wants vendors to propose metrics.   Looking for vendors who provide metrics on quality.   AOL wants to know the cost in advance.

    GE:  a page by page review may not be accurate, but it is defensible.   Why should lawyers measure accuracy if it turns out it will be low, which will only hurt their position in court.  This said in context of feasibility of automating reviews.  Proving automate review is good will be hard since we don’t measure results now, meaning with human page-by-page review.

    Working with Business Decision Makers

    Q: How do you get funding for EDD software?   You have to look beyond the litigation.   Make clear what’s in it for IT.  What’s the ROI for IT?  Try to hook EDD / litigation needs into new IT initiatives.  “Need a champion who has juice” – this could be CFO.

    Another panelist disagrees:   getting champion on board is too hard, takes too long.   Find a way to self-fund over time.  Consider a pay as you go model charged back to businesses.   Also, follow the first rule of corporate budgeting:  find physical space and occupy it (perhaps get rid of your library).   Set up your own cost center and bill to it.    Don’t build the system in the middle of a fire fight.