During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”
What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?
Two panels here at the Summit explored these issues: “Getting the Right Players at the Table” and “Building an In-House Strategy for Litigation Response.” Here are four major themes that emerged from the discussions (which we’ve consolidated in this discussion; the panel participants are listed at the end of this post).
1. Harness all your resources.
E-discovery response is not something that should be unceremoniously dumped, in its entirety, into the lap of outside counsel. Instead, companies should develop a process for responding to e-discovery requests that is rigorous and repeatable, and that draws upon the appropriate resources, both inside and outside the corporation.
Some of the possible players in the e-discovery process include in-house counsel; information technology / information security; specific business units in the company; records; human resources; privacy; outside counsel, including trial counsel, discovery counsel, and litigation support; vendors (or “service providers,” which appears to be the au courant term); opposing counsel; and the judge.
What role should in-house counsel play? According to Hilary Lane of NBC Universal, they should serve as an interface between company personnel, on the one hand, and outside counsel or service providers, on the other. This is one traditional role for corporate counsel.
But in-house attorneys should get their hands dirty, too. They shouldn’t be afraid to get involved in the fact-finding process, according to Martha Mazzone of Fidelity.
Of course, in-house lawyers aren’t the only important players at the company. As noted by Stephanie Mendelsohn of Genentech, IT should be involved, since they have the best information about systems and system architecture, and business units should be involved, since they know what types of documents they are generating and where these documents are stored.
Corporations should also consider having in-house personnel who address discovery issues. For example, Pfizer currently has six in-house discovery managers, all of them lawyers, who are subject matter experts in particular areas (such as government investigations or intellectual property). According to Edward Gramling, Pfizer’s discovery counsel, having these in-house personnel has generated good results for the company.
Pfizer is a huge corporation with massive amounts of data to manage. Smaller companies, or companies with different needs, might have fewer in-house personnel, or might rely more on outside service providers.
“Service providers have handled tons of e-discovery matters,” said Greg McPolin of Pangea3, the outsourcing company. “Draw on their expertise and experience.”
2. Consider going overseas.
McPolin of Pangea3 manages a delivery team of 500 attorneys, based out of Mumbai, Delhi, and Dallas. Pangea3, which helps clients with major document projects, has U.S.-admitted lawyers on the ground in India to supervise the work being done.
Martha Mazzone has been pleased by the results that Fidelity has obtained from outsourcing to India, in terms of both price and convenience. Because of the time difference, Mazzone can put in a request for a certain group of documents at the end of the day, and she’ll have the documents by the next morning.
She did offer this piece of advice: the process of sending work overseas will be easier if a company has already developed comprehensive, standardized procedures for data retention and retrieval. Outsourcing will offer the greatest benefit to companies that have done their homework in advance.
There was an interesting sidebar involving Greg McPolin of Pangea3 and another panelist — Mark Herrmann of Aon, Above the Law’s in-house columnist — about the use of domestic versus overseas lawyers for document review. After Herrmann described a “kid in a basement who has to review a zillion documents in the next six months,” who is bitter about his inability to land a more desirable job and who doesn’t care about the case, McPolin argued that the company would be better off having the document review done by a lawyer in India. According to McPolin, “In other parts of the world, document review is more of a real career” — meaning that the lawyers who work on it have higher morale and greater engagement with projects.
(Herrmann imagined a scenario in which one could “game-ify” document review, so that it becomes something akin to “Angry Birds” — an activity that people can do for hours on end, even though it’s not very mentally demanding, and still find highly engaging, even enjoyable.)
3. Keep track of the big picture.
It’s easy to get lost in the picayune details of e-discovery. As Mendelsohn of Genentech reminded the audience, the touchstones should be good faith, reasonableness, and proportionality — that’s the big picture of the discovery process.
Mark Herrmann reminded Summit attendees that discovery itself is part of a larger litigation process, and ultimately a prelude to trial. Even if a trial never takes place, the terms of the settlement will reflect, in part, what might have happened at trial.
As a result, it’s important to think about e-discovery from the point of view of trial counsel. Attention should be paid to the need to develop experts, to attack the other side’s experts, to develop fact witnesses, and to build up trial themes and tactics.
Ed Gramling of Pfizer sounded similar themes, citing the importance of storytelling, and noting that technology is not a panacea. (More on that later.)
4. Pay attention to preservation.
In the e-discovery process, a lot of attention gets paid to responsiveness review and privilege review. And a lot of money gets paid out too — responsiveness review is the most expensive part of the process, according to 72 percent of the in-house lawyers in the audience (surveyed using a text-message polling system).
But data preservation, while perhaps less than sexy as an issue, should not be overlooked. When the in-house counsel in the audience were questioned as to where they face the greatest exposure or risk in e-discovery, the top choice by far was preservation, with over 40 percent of the vote. This did not surprise the panelists.
“Preservation should win,” argued Herrmann of Aon. “Many other mistakes are correctable. Take privilege, which can be addressed through clawback agreements.” In contrast, if a document or piece of data that should have been preserved gets destroyed, that’s very difficult — and sometimes impossible — to fix.
5. It’s the people, stupid.
Technology has streamlined many aspects of e-discovery. As Greg McPolin of Pangea3 argued, when it comes to reviewing large amounts of documents, “technology is your friend.”
“Technology has to be your friend,” countered Mark Herrmann. “It created the darn problem!”
And there’s certainly some truth to that. If technology didn’t allow for the storage of massive amounts of data, this data wouldn’t be around for review in litigation.
Technology is critical in the e-discovery process — but at the end of the day, the process still boils down to people. Some aspects of e-discovery still lie beyond the realm of automation — for example, the subtle and complex calls surrounding attorney-client privilege, which can’t just be reduced to a simple formula (e.g., emails sent to or from a lawyer — sometimes they’re privileged, sometimes they’re not).
“If you can invent a computer that can do privilege calls, I might as well retire,” said Mark Herrmann.
Furthermore, the technology is only as good as the people who are operating it. And many e-discovery problems can be avoided entirely if the corporation’s employees are properly trained from the outset, and if the company has a set of procedures and protocols in place to govern the storage, management, and retrieval of information.
The panel on IP theft and exfiltration discussed a concept called the “human firewall.” Technology might point in a certain direction, but technology can be overruled by the sound exercise of human judgment.
And that, at the end of the day, is a good thing — at least until our computer overlords tell us otherwise.
PANELS COVERED IN THIS STORY
Getting the Right Players at the Table
- Hilary Lane, NBC Universal
- Mark Herrmann, Aon
- Greg McPolin, Pangea3
- Stephanie Mendelsohn, Genentech Roche
Building an In-House Strategy for Litigation Response
- Kimbir Tate, McKesson
- Edward Gramling, Pfizer
- Martha Mazzone, Fidelity
IP Theft and Other Situations on the IP Exfiltration Spectrum
- Corey Hirsch, LeCroy
- Mark Michels
- Eric Rubinstein, The Nielsen Company