LTN's Claire Duffett reports from this morning's LegalTech panel, "Actionable E-Discovery: Finding the Right Balance of In-House and Outsourced Resources."
The cautionary tale: Qualcomm paid more than $8 million in fines for engaging in misconduct and concealment when it failed to preserve 46,000 e-mails in its review process during Qualcomm Inc. vs. Broadcom Corp.
"My risk aversion advice: Don't do that," joked Tom Hall, managing attorney for discovery and litigation technology at Cleary Gottlieb Steen & Hamilton. Because they failed to properly question Qualcomm's productions, 14 attorneys defended their negligence before the bar. Hall discussed how law firms can prevent disaster by understanding and monitoring clients' technology infrastructure and preservation processes and by questioning their actions with rationed skepticism.
Inside counsel, whose employers bear the financial responsibility of sanctions, must follow four steps to avoid another Qualcomm, Miller said: Follow the Federal Rules of Civil Procedure, keep outside counsel in the loop and engage vendors where technology and expertise lapses exist.
But the FRCP rules provide guidelines, not a moral compass. It's up to firms and counsel to work together, during mandated meet-and-confer and elsewhere, to find the best protocols and technology to ensure good faith.
The approximately 300 attendees in the room grappled with determining how this is done. A snap poll about which step in the e-discovery process most concerns the panel attendees analysis and preservation issues still keep lawyers awake at night:
- Processing review and analysis: 43 percent
- Preservation and collection: 33 percent
- Information management: 13 percent
- Identification: 8 percent
- Production: 3 percent
- Presentation: 1 percent
Hall joined attorney Marie Lona, partner and chair the of e-discovery and electronic information practice group at Winston & Strawn; Mikki Tomlinson, litigation support manager for Chesapeake Energy Corp.; and moderator Kelli Brooks, principal of forensic technology services at KPMG. Also on the panel was Lucie Miller, legal associate and e-discovery consultant for Eli Lilly and Co., a company facing its own e-problems this week.
According to this story on Portflio.com today, "When the New York Times broke the story last week that Eli Lilly & Co.
was in confidential settlement talks with the government, angry calls
flew behind the scenes as the drug giant's executives accused federal
officials of leaking the information.
As the company's lawyers began turning over rocks closer to home, however, they discovered what could be called A Nightmare on Email Street, a
pharmaceutical consultant told Portfolio.com. One of its outside
lawyers at Philadelphia-based Pepper Hamilton had mistakenly emailed
confidential information on the talks to Times reporter Alex Berenson instead of Bradford Berenson, her co-counsel at Sidley Austin.
With
the negotiations over alleged marketing improprieties reaching a
mind-boggling sum of $1 billion, Eli Lilly had every reason to want to
keep the talks under wraps. It was paying the two fancy law firms a
small fortune to negotiate deftly and quietly.
Maybe turning off your e-mail's "auto-fill" feature should top your EDD checklist.