As we have done every year since the inception of this industry-leading conference, Falcon’s team of ACEDS-certified attorneys and project managers attended the 2013 ACEDS Conference to share ideas and insights with other industry leaders and e-discovery certification experts.
For those who were unable to attend the conference this year, we have compiled our notes and summarized these highlights from the conference.
Learning from E-Discovery Fiascos
The case of Coquina Investments v. TD Bank illustrates what can occur when a defendant and its outside counsel fail to produce critical data. Serious mistakes arose from poor planning, failed processes and communication breakdowns between attorneys, counsel and vendors, which resulted in sanctions against TD Bank and Greenberg Traurig for blatant e-discovery violations. This session emphasized the need for delegating roles and maintaining clear lines of communication between in-house and outside counsel, vendors and IT.
Avoiding E-Discovery Malpractice
Concerns related to malpractice by e-discovery practitioners appear to be on the rise. This session covered protecting yourself and your client from this risk by preparing for malpractice claims and ensuring you have adequate coverage. In addition, the session covered best practices for service providers when implementing new review technologies, including advice on performing conflicts check and clarifying crucial roles.
Emerging Social Media Use
The use of social media for business purposes creates legal risks for users. Companies need to understand how to manage these risks against its utility for driving business success. Issues arise from the use of social media include preservation and collections issues, as well as tying its use into current information governance and compliance programs through enacting social media policies.
Information Governance and Development of a Defensible Deletion Policy and Procedure
With the quantity of data created yearly, it is a must for a company to create a deletion policy and apply that policy uniformly. A company without a uniform policy is incurring unnecessary expense of storage and the risk of significant e-discovery costs when litigation occurs.
Project Management and Process is Essential
Due to the size of data volumes in litigation and the number of people involved in responding to a large e-discovery request, applying sound project management principles is essential. Each project needs a plan and process for executing that plan to have an efficient and high quality e-discovery response.
Big Data in the Cloud
With Google and Microsoft offering cloud office applications and storage, many companies are turning away from managing their own servers. These companies offer end to end office products and services which are available anywhere with an internet connection. These cloud services reduce the need for full time employees and hardware. However, a company must be careful to review the service agreements and determine the risks involved in responding to litigation. Thought must be given to document retention policies that would specifically apply to corporate data stored in the cloud.
Cost Transparency in E-Discovery is Critical
Our federal and state judiciary and the federal rules regarding e-discovery demand proportionality among litigants. Take control of the process and demand a transparent cost estimate from your outside consultants and outside counsel to ensure that what you present to the court regarding discovery is accurate, reasonable, defensible and proportionate at the outset of the litigation.
Be Proactive, Get it Right Before Litigation Hits
Companies with proactive and defensible strategies regarding information governance and litigation readiness save money and avoid costly litigation. In-house counsel must work in collaboration with IT and compliance to ensure defensible, cost-effective strategies for e-discovery and information governance.
Get to Know Your E-Discovery Consultant BEFORE Litigation
Do your homework and ask good questions about the team you want to hire. E-discovery vendors look and sound alike and assure you they can support you with full EDRM support. Be sure you are engaging knowledgeable and experienced litigation attorneys and technologists who have practiced in the trenches and in fact have experience and expertise across the EDRM.
Small to Medium Sized Businesses Increasingly Impacted by E-Discovery
E-discovery continues to expand its reach to state courts, as more and more states are adopting e-discovery rules, procedures. What this means for small and medium size businesses that do not have significant litigation exposure at the Federal level, is that they too will increasingly need to deal with the costs and challenges associated with e-discovery and complying with the rules that govern it; e-discovery touches those beyond the large multi-national corporations.
Cross-Border E-Discovery Remains a Tricky Proposition
For all the advances in e-discovery technology, obtaining ESI from international locales remains difficult and fraught with risk due to data and privacy protection regimes in foreign jurisdictions. It is an exercise that should only be undertaken with expert advice and local counsel from the location in which you need to collect ESI.
In-House Legal Benefits from E-Discovery Certifications
The ACEDS certification and e-discovery certifications in general, are a good value proposition for in-house legal teams looking to increase internal buy-in and awareness of e-discovery and its needs within their organizations. Anecdotally, many attendees at the 2013 Conference hailed from organizations who have growing e-discovery needs but are behind the ball in terms of adopting processes and technology to efficiently and effectively meet their discovery obligations. Attending ACEDS and becoming certified was a way for the professionals at these corporations to not only know more about what they are dealing with, but also prove to the decision makers in their company that they do know what they are talking about and that their requests really do have merit and are based on real business needs; a certification, whether from ACEDS or reputable organization, provides legitimacy on the subject of complying with discovery obligations in the digital age.