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Fear and Panic behind EDD Industry Growth?

Posted by rjbiii on October 2, 2007 has posted an article discussing the growth of the electronic discovery industry, and examining the forces behind it. The article begins by listing “four main drivers” contributing to the industry’s prosperity:

  • The volume of electronic data created by businesses and law firms.
  • Ostrich Day: On December 1, 2006, EDD amendments to the Federal Rules of Civil Procedure went into effect. Practitioners can no longer keep their heads in the sand, and judges are getting savvy, fast.
  • Huge sanctions for EDD mischief, in landmark cases, including:
    • Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. Lexis 18771 (S.D.N.Y.Oct. 22, 2003).
    • Coleman (Parent) Holdings Inc. v. Morgan Stanley & Co. Inc., 2005 W.L. 679071 (Fla. Cir. Ct. March 1, 2005).
    • Qualcomm Inc. v. Broadcom Corp., Case No. 05CV1958-B(BLM), U.S. District Court, Southern District of California.
  • Compliance and regulations: The post-Enron proliferation of government regulations (Sarbanes-Oxley Act et al.) has changed the way corporations process electronic data.

Ostrich day? New expression for me, and I don’t think it’s a driver. It’s a reaction to the reality of technological progress and changes to society. You’ll notice that two of the cases used as examples for sanctions occurred before the new rules were enacted; courts were quite prepared to take action on their own (although I agree the guidance the amendments provide were necessary). Some vendors may use it as a driver [“The new rules are here! Can you cope?”], but the response by companies and attorneys should be driven by the same forces that caused the amendments to be necessary, rather than reacting to the federal reaction…

Driver number 1 is the real deal, here. Information systems are more integrated than ever in our daily lives, and data is found everywhere. Storage costs have decreased, and businesses have always sought the ability to build and maintain a sort of collective knowledgebase. Now they have better tools than ever to do so.

Sanctions are then considered. An interesting quote appears:

But panic — “fear of sanctions and claims of malpractice”– may be the ultimate fuel for EDD growth, suggests DLA Piper partner Browning Marean.*

Gregory Mazares, president and CEO of Encore Legal Solutions, agrees. In the wake of the new FRCP amendments, “the greatest catalysts for industry growth have been fear, lack of knowledge and inefficiency,” he declares. “There is great financial risk for those corporations (and law firms) that don’t fully comply with the new federal rules. The fear of severe sanctions and substantial financial losses in litigation are driving a change of behavior in discovery and case preparation,” says Mazares.

I disagree. The effect of sanctions to get one’s attention can’t be minimized, but if counsel and their clients are responding to that, again, they are reacting to judges’ response to attorneys who are not dealing with their obligations to the client and the court. It is a reaction to someone else’s reaction, rather than to the primary issue, which is the production of relevant data is not optional, and advances in storage media makes it a more technically challenging issue. The distributive nature of data (how easy it is copied, how widely it is often dispersed), and the use of forensics technologies, make “hiding” documents a more difficult chore, and the unwary may be caught.

There is also a bit of sneering over the concept of “litigation readiness,” and the article notes that “production-based vendors” are trying to recast themselves as “knowledge-based consultants.”

“Litigation readiness seems to be the buzzword du jour. Lots of smoke and sizzle, but little substance so far,” observes Gelbmann.

I’m not sure what form the “substance” should take. How do measure the absence of sanctions and inefficiencies in a case? Litigation readiness, properly considered, is simply the implementation of pre-dispute measures, generic to any particular litigation, that make it easier for corporate counsel to comply with their obligations to preserve and produce data. It is mostly good records management. A company with a good plan is able to recognize the trigger for a litigation hold (“reasonable anticipation of litigation”); is able to quickly identify the appropriate custodians (“key players”); preserve the relevant data held by those custodians; and collect the data in a defensible manner (or have it collected for them). After that, there is culling, processing, review and production. Having a plan in place may help to avoid errors that otherwise would be made, and may reduce inefficiencies and costs in the post-dispute processes:

“It’s simply good business,” says Ashley Watson, GC and vice president of Attenex Corp. “At its core, litigation readiness is really about being proactive and having a process in place for litigation. It’s just common sense that once a company realizes it has several hundred legal matters a year — yet they handle each one differently and the cost can vary widely — that they’ll try to standardize a process.”

“Reactive litigation response can be a big waste of corporate resources, let alone a source of potential sanctions, fines and lost cases,” concurs Mary Mack, technology counsel for Fios Inc.

I do take note that vendors who began as reprographics shops are now calling themselves “consultants.” Suddenly everyone’s an expert. Just be sure you check their credentials.

Finally the article considers an issue that is something of a red herring:

Another question that can be difficult to answer is “Who owns EDD?” The corporation? The firm? The vendor?

Ultimately, it’s the clients case, and the client will most immediately be affected by a poorly managed project. However, both in-house counsel and outside counsel have obligations in the way they conduct themselves during discovery. But that isn’t anything new, is it? Ethical obligations have always existed. The vendor is a new player, because of a couple of reasons: he may (or may not) bring expertise to the process; and whatever he or she does to collect, process or produce the data may be scrutinized by the court. As we’ve previously discussed, this means that whoever hires the vendor must be able to defend the choice, to some degree. A good decisionmaking process may help to insulate the other parties from negligence on the part of the vendor.

What it all comes down to, as we’ve posted earlier, is that electronic discovery requires a bit of knowledge from several different disciplines, good organization, and…brutal honesty on the part of the parties with regard to data. You never know when that document you thought you had consigned to oblivion returns from the dead to haunt you.

Panic is often used to describe a reaction that is isn’t justified. Counsel and their clients might panic, if discovered to have conspired to conceal evidence, just as they would have done in the days of paper archives. Counsel might panic if they hadn’t taken discovery seriously, and mismanged the project (perhaps losing a major client). But it isn’t panic that is driving the industry’s growth. It is necessity. Necessity created by technological change. And it isn’t a bad thing, perhaps. Again, I ask my favorite question: Would you rather search through boxes of paper in a hot warehouse in the middle of nowhere, or would you rather plug search terms into a document retrieval application? We are now in a period of transition, and we are hitting some rough spots. It will get better, I promise.

One Response to “Fear and Panic behind EDD Industry Growth?”

  1. […] somewhat confusingly, Defuse Fear and Disarm EDD Vendors–we posted about the first article here), in which she discusses trends in the industry: First, to set context, let’s look at the […]

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