InsideCounsel Roundtable - May 2010 - 4

Roundtable
Patrick E. Zeller, Guidance Software (Moderator): As in-house counsel, what message would you like to send to judges and rulemakers about the difficulties the legal community is facing when it comes to conducting e-discovery in today’s litigation environment? Patrick Oot, e-Discovery Institute: I’m a big proponent of holding the line on reasonableness. We need to educate the judiciary, corporate colleagues and outside counsel that the standard of reasonableness isn’t a standard of perfection, despite what some vendors and consultants might say. Anthony J. Knaapen, Chevron Corporation: Mark Michels, Cisco Systems, Inc.: According to one source, about 90 percent of civil litigation spend is on discovery and discoveryrelated matters. For us, discovery expense is almost entirely related to electronic discovery. We are very proud of our innovation, but having a few million more dollars to use for other investments, rather than spending it on litigation, would have a big impact. Marc E. Fishman, Hoffmann-La Roche Inc.: There was a time not so long ago when the focus and purpose of discovery was to idenWe need to get the courts and the rules committee to consider rewarding people who are willing to limit the scope and get to the crux of e-discovery. When opposing counsel are recalcitrant or acrimonious and don’t want to limit e-discovery or engage in reasonable discovery, then we should have the ability to put the court on notice. The prevailing party in those cases ought to be able to recover the complete cost, beyond what you might be entitled to for a typical “cost bill,” the unnecessary costs of collecting, retaining and reviewing informaTheresa H. Beaumont, Google: It centers on the distinction between the idea of perfection versus the actual standard of reasonableness. Outside counsel tend to lean toward the idea of perfection in e-discovery much more than vendors do. Typically vendors are just trying to keep up with the data sent to them and the imposed deadlines. As for the courts and the reasonableness standard—judges all too often opt out and throw up their hands, telling parties to work tify, retrieve, review and produce documents that were actually potentially relevant to the claims in the litigation. The vast majority of those documents were then reviewed by your opposing counsel. Now, we put this “E” in front of discovery, and we’ve changed the whole dynamic. It’s not necessarily about the issues in the case anymore. It’s become, “What can I ask for to make this a difficult and costly process for my adversary, such that they will think more about the cost to respond than the important issues in the case.” The “E” in e-discovery was never intended to mean “everything.” Pallab Chakraborty, Oracle: Our vendors are telling us that technology will solve our problems and that expenses will go down. But I don’t agree, because data volumes are growing, in some cases exponentially. And the same technologies that are helping us better review and analyze data are actually digging out a lot more relevant information in the early information management stage. Better machine-assisted review barely offsets the increased data you have collected for that matter. tion as the result of overly broad, poorly defined, superfluous e-discovery.

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InsideCounsel Roundtable - May 2010

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