Electronic Discovery Counsel: Providing Litigation Support, Helping Clients, Training Staff And Seeking Policy Solutions

Monday, November 2, 2009 - 01:00

Editor: Tell us about your role at Day Pitney and your staff.

Courtney : I am in the firm's commercial litigation department and practice as electronic discovery counsel to the firm. We practice in five states, and I support all litigators across the firm. In addition, I oversee the litigation support department, which consists of one manager and six litigation technologists who handle the technical aspects of e-discovery such as processing data and setting up review data bases.

I have an internal role and an external role. Internally, I am responsible for best practices in e-discovery, for managing the litigation support staff, for conducting training and for keeping track of the developing law in this area. Externally, I support all litigators in active cases. I also market the firm's e-discovery capabilities through writing articles and speaking at conferences.

Editor: How did you become interested in e-discovery?

Courtney: I worked as an in-house counsel and manager of litigation for a large healthcare company for 20 years. During the last ten years of my employment there I worked on several large national class action cases in which e-discovery played an important role. I exercised responsibility for electronic discovery in those cases.

I had always been interested in technology, and handling the e-discovery in those cases became a natural and substantial part of my job. I started reading articles, tracking the law and becoming actively involved in the work of Lawyers for Civil Justice. My focus on e-discovery intensified when I began to receive invitations to be a conference speaker. Eventually, I decided to concentrate on e-discovery as a practice area and returned to private practice to do this.

Editor: I understand that your duties at Day Pitney include training.

Courtney: Yes. My initial charge was to develop a set of best practices around electronic discovery. These were distributed to all litigators in the firm after being approved and endorsed by our firm management, and they are now posted on our internal portal and available to the entire firm.

I have presented both an overview of electronic discovery and a presentation on basic technology via video conference that all lawyers and paralegals in the firm were invited to attend. I have given presentations to several practice groups in a more informal setting. I have also conducted presentations exclusively for staff such as paralegals and administrative assistants, including an introduction to our internal discovery review application, Summation. There is a lot to learn in this area and people are very eager to learn it. Plus, it benefits the practice for staff to have a basic understanding of what e-discovery is all about.

Editor: Do you provide support on litigation matters?

Courtney : Yes. At the beginning of a case, I am often asked to coordinate the collection and processing of a client's electronically stored information (ESI). I may be asked to draft a litigation hold notice for distribution to the client's employees or to review a notice that the client has prepared. I have been asked to participate in meet-and-confer conferences for clients in federal court cases to discuss the discovery plan for the case. I assess and hire vendors to perform work such as conducting forensic data collections or hosting documents on a web-based application. If a client receives a document request that we believe is too broad or is not appropriate, I marshal supportive arguments based on legal principles to arrive at a fair result.

Editor: How does your firm handle the document review aspect of e-discovery?

Courtney: As lawyers did with traditional paper discovery, we identify and collect potentially relevant ESI based on the nature and facts of the case. We often use technology to help us arrive at an accurate set of relevant documents and to identify privileged material through culling and word searches. We process the collected ESI and use Summation to host documents internally, or if appropriate, we may host them externally. Reviews are conducted by our attorneys, or, in certain cases, outside contract attorneys. More senior attorneys play a role in the review by managing junior associates and concentrating on the documents that may be privileged or subject to the work product doctrine.

Editor: I gather that you also counsel the firm's clients about e-discovery.

Courtney: Yes. We have provided advice to clients about their internal e-discovery programs, including processes to implement litigation holds and issue hold notices. As a related matter, clients are increasingly concerned about enterprise record retention requirements and how they affect litigation. In particular, clients are concerned about managing e-mail, given its proliferating volume. More law firms will be asked to provide advice in this area because of the predominance of electronic information in the commercial and government spheres and the role that e-discovery plays in litigation.

Editor: What role does early case assessment (ECA) play in your work?

Courtney: ECA takes different forms. Initially, ECA means the early planning that law firms and in-house legal departments have traditionally done when a complaint is filed against a party, in which we identify the key players and the location of their relevant documents and analyze the case. This approach should be applied in every matter, whether the documents exist in paper or electronic form.

With the advent of e-discovery, we saw the development of technological ECA methods such as culling, in which time parameters or search terms are used to narrow the universe of ESI. More recently, we have seen the emergence of more sophisticated ECA tools that apply analytic algorithms to identify relevant information that may be helpful in planning how to handle a case. These tools are offered by vendors that host client documents on web-based review applications as part of their package of e-discovery services. Known as "clustering" or "concept searching," these features can be a powerful way to hone in on relevant documents.

Editor: Please explain the value of applying proportionality to the scope of e-discovery.

Courtney: The concept of "proportionality" is built into the Federal Rules of Civil Procedure and state procedural rules. The federal rules address it by allowing courts to limit discovery if the burden or expense outweighs the amount at issue in the case or the importance of the discovery sought in resolving the issues. The value of proportionality lies in the possibility of controlling the scope of overly broad discovery and limiting the discovery to what is appropriate for the case. However, parties have different incentives to apply proportionality; two large commercial entities squaring off against each other may embrace proportionality because each faces substantial burdens and expense responding to broad discovery. If one party is a large entity and the other party is an individual, the incentive is not equivalent - the large entity may be asked to produce millions of e-mails, but the individual has little to produce. One positive development is that the Sedona Conference Cooperation Proclamation mentions proportionality as one of the methods to accomplish cooperation.

Editor: Why do you consider the Sedona Conference Cooperation Proclamation important?

Courtney: The Cooperation Proclamation, which has been endorsed by many judges (some of whom make it required reading for counsel who bring disputes to the court), urges lawyers and other stakeholders in the justice system to establish a culture of cooperation in the discovery process. There is a lot of common sense in this goal. It discourages parties from relying on unnecessary disputes, "gamesmanship," or "hiding the ball" to no practical effect. The Sedona Conference hopes to promote the Proclamation by offering educational programs, forms and templates to help practitioners.

Editor: What do you think is the most difficult or pressing problem in e-discovery?

Courtney: The sheer quantity of electronic information, particularly e-mail, has caused a paradigm shift in the way that we must approach discovery. E-mail has replaced the telephone call in commercial life. Although we never collected or produced telephone calls, we now collect, sift through, and produce millions of e-mails. Often, very few of these communications are relevant or important.

The challenge we face is how to narrow a large amount of information at the beginning of a case to the set of documents that is potentially responsive and important. Proportionality is a part of this. If there are one hundred people who might know something about a dispute, but there are really only ten who are truly knowledgeable, start with these ten. These are hard decisions, but they result in quicker identification of the important documents in the case rather than spending time reviewing useless information.

Sometimes lawyers collect too much information at the beginning of a case because they think they have to act quickly. It would be better to take a deep breathe, wait a day, think about it, talk about it, and make a more intelligent decision about what to collect.

Please e-mail the interviewee at ccourtney@daypitney.com with questions about this interview.