For The Litigator eDiscovery Can Be A Powerful Tool

Monday, December 6, 2010 - 00:00

Editor: Please tell our readers about your practice area and any specialties you might have.

Lynch: My background in trial work actually begins in the Manhattan District Attorney's Office where I gained invaluable trial experience. I have been at Kelley Drye for the past ten years, and I have been fortunate to be involved in many trial-ready cases covering many areas of the law. Early in my career I did primarily financial services cases and am still involved in this area, currently handling a Ponzi scheme case out West. I still am involved in white collar crime case work although none have gone to trial recently. Lately, I have tried false advertising and Lanham Act cases. I have also been handling a couple of matters related to the real estate collapse in the New York area. I have done a fair amount of work in the area of unfair competition violations of non-compete agreements in a litigation context. So my practice is pretty broad and varied.

Editor: In cases where there was extensive discovery, to what extent did you find information through eDiscovery that you would not have found in other ways?

Lynch: The electronic age has allowed us to find evidence in a number of different contexts, especially in electronic documents. Electronic discovery has changed litigation dramatically. What I find interesting is that you can gather evidence as to the history of documents as they have been altered on hard drives over time. Also, I believe it is now much more difficult for litigants to cover up, hide or bury damaging documents since emails generally appear in multiple email boxes and in many versions. The original email may be sent to a few people who respond or forward it to others. It is nearly impossible to control your document once it leaves your computer.

Editor: I assume that we are talking about metadata basically.

Lynch: Both metadata and the electronic documents themselves. From an investigative perspective metadata adds so many different pieces of evidence. Not only the electronic imprint of the metadata but the electronic documents themselves tend to appear in so many different places that it is unlikely that any party can conceal or obscure their existence.

Editor: Have you ever encountered situations where you felt that the other party was intentionally using the cost of eDiscovery to force or improve a settlement?

Lynch: The answer, surprisingly, is no. I still encounter on a pretty regular basis adversaries who are unprepared for eDiscovery, who are afraid of eDiscovery or prefer to leave their computerized information in another party's hands who is not as aware of possible adverse consequences. In my view eDiscovery is a great tool for a litigator from a strategic perspective. Certainly it has an impact on cost as well, but if you are managing your document review properly, the cost should not outweigh the value added. In my view, a litigator who has a good handle on the data can use it as an offensive tool, not to make it difficult or burdensome or costly for the other side but to penetrate the substantive elements of the case in a much quicker way. Much electronic evidence today is exchanged in an unguarded state. If a litigator can obtain this evidence quickly and use this information throughout discovery, through the depositions and all the way up to the trial, he can often force a settlement on terms favorable to his client at an early stage in the case. I feel in some cases I have been dealing with people who don't know how to use it as a positive tool or are a little bit afraid of it. But I think it is a great mechanism that if employed properly, can be used to substantively change a case. We are prepared, and we prepare our clients based on our experience over the years that we have been involved in eDiscovery.

Editor: One measure proposed by CPR and many lawyers has been to use early case assessment as a means to reduce costs and time involved in litigation. Do you think this concept has taken hold?

Lynch: Absolutely. To me the currently available search tools are getting so advanced in enabling us to get to the heart of the matter in these cases. Instead of wasting associate time by going through every single email, we are looking at meaningful documents at an early stage. We are able to access the underpinnings of a case so much better when we are involved early. Our clients are getting much more sophisticated about how they manage their electronic data. Some of them have gone so far as to set up evidence preservation units as individual stand-alone units designed to manage some of the important issues that might be raised in discovery, thus helping their lawyers get to the heart of the matter faster and obviously save costs.

Editor: One recent trend in eDiscovery is the use of concepts rather than key words. What are the benefits of using concepts over key words? Are there any drawbacks?

Lynch: Concepts are extremely helpful in capturing dominant themes in a case that may not appear in the same key words each time. On an elementary level typos can play havoc with key words. But beyond that, not everyone refers to matters with the same key words so that use of concepts certainly expands your ability to capture important data and to position it for review. There are certain drawbacks to using concepts in terms of running the searches, which require a technical explanation. Our litigators try to use a mix of both key words and concepts to eliminate the deficiencies of either system.

Editor: How can eDiscovery help organizations avoid reputational harm? In what other areas can eDiscovery be an important risk avoidance tool?

Lynch: Courts very quickly identify which side has mastery over its eDiscovery. It is important to the court for so many reasons, not the least of which is that the more in command of the eDiscovery issues the parties are, the fewer headaches the court has to deal with in terms of petty squabbling. A client that has command of its eDiscovery issues gains the greatest credibility with the court. Obviously when you have big eDiscovery gaps in the information you deliver, these shortcomings are hugely embarrassing and can cause clear reputational harm to clients. Certainly there have been a number of cases where adverse results have come out of an eDiscovery issue, which is not the way that these cases should be decided. To lose a case or to be handicapped in a settlement negotiation because your eDiscovery is faulty is dangerous on many fronts, including reputational risk.

In terms of how it can be an important risk avoidance tool, my sense is that the clients that are really on top of these issues of how they manage their documents and data internally and the more careful they are in their management are good indicators of how the company is managed overall. A well-organized client that has command of all aspects of its business tends to have fewer substantive problems as well, which makes litigating on its behalf much easier. If a client is managing its data well, it can become aware of any litigible matter at an early stage.

From a regulatory perspective, a client doesn't have the same pace of discovery that he might have in a civil case. Regulators don't have a lot of patience. They need immediate satisfaction in order to move on to the next case. If you are prepared to respond to a regulator quickly and are in full command of the data you are turning over because you have your eDiscovery in order, these are huge advantages.

Editor: In theory, good information management will help reduce costs further down the line in litigation. How are smart companies using technology to reduce costs?

Lynch: Today clients are getting away from the old model of throwing everything on a server or on a backup tape. They are becoming much wiser about how they organize their data and archive their data so that they can retrieve it immediately.

Editor: Many of our readers are concerned with escalating eDiscovery costs, such as identifying and producing documents, processing discovery requests, training personnel and, in general, managing complex administrative processes - all in addition to actual storage costs. What factors contribute most heavily to the cost structure of eDiscovery and what are the hidden costs?

Lynch: There is always the problem of transferring documents from a native format into a document review platform - a cost that one should try to eliminate. If you have your e-data organized in such a way that you can respond quickly to a regulator or to a litigation, in the long run you are going to save a lot of litigation costs because your adversary may have to contend with more complicated processes. But in terms of hidden costs, the translation of data from different platforms is an area that needs some improvement.

Editor: What risks are undertaken by automating the eDiscovery review? How much should the lawyers stay involved?

Lynch: Lawyers should always be involved because as a litigator you have to know your case and your evidence. However, lawyers cannot review every piece of data being processed since the amount is overwhelming. While automating eDiscovery carries some risk, as a general matter, in view of the amount of data involved, using the automating process with either concepts or key word searches, a litigator will obtain all that he needs. Today the chance of missing a document is a manageable risk and the cost savings are dramatic. It is much more cost effective on all levels to automate document searches so that the lawyers can dive into that smaller universe of essential documents.

Editor: In practical terms, what are judges' expectations of lawyers in eDiscovery?

Lynch: Judges are gaining a much better grasp of eDiscovery, and in my experience have come to become most reasonable in terms of what the eDiscovery obligations are. I think that judges are much more inclined today to follow a reasonable approach, cutting off eDiscovery when a sufficient level of data has been evoked.

Editor: What can organizations do to ensure that their IT and legal professionals, who speak different languages, are working concurrently and strategically with respect to litigation readiness?

Lynch: This is a big problem, and it will continue to be a problem in the short term because there is a bit of a generational gap on some of these issues. However, our young lawyers today are working hand-in-hand with our IT professionals. They tackle the problems together and are beginning to understand each other better. When these issues first arose you were talking about bringing IT people out of other environments and putting them in a room with a partner who might have been 20 or 30 years older, who had not grown up in the electronic age. Today, there are young lawyers in my generation working with these IT professionals, many of whom have been in the legal industry for up to a decade, who were educated in the electronic age. From my perspective, right now the most valuable thing that an organization can have while this process is unfolding is an IT leader or director who can really bridge that gap (whom we are fortunate to have at Kelley Drye). I have seen a lot of change in ten years to the point where I look at eDiscovery as one of the most useful tools in our arsenal. If you are ahead of the game, you have so many advantages in litigation.

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