Controlling Ediscovery Costs: Kelley Drye's Commitment Before and During Litigation
Email, social media, voicemail, instant messaging, removable media, blogs, smart phones-these are tremendous advances in communication and promote efficiencies that have positive impact on business. But these innovations and their accompanying massive volumes of data pose major and costly challenges to clients, courts and lawyers involved in litigation.
To deal with the challenges, Kelley Drye created an Ediscovery Working Group whose members have broad experience managing complex electronic discovery issues in a wide variety of industries. The Group learns from each engagement, stays current on legal developments and technological innovations, and advises our litigation teams on best practices.
While each company is unique, experience has taught us that careful planning is the single most effective tool to reduce cost in the long run, and avoid sanctions and other adverse consequences. Indeed, the 2006 amendments to the Federal Rules of Civil Procedure contemplate that corporations will carefully plan for Ediscovery before litigation actually begins. Without this planning, tight time periods following the Ediscovery "triggering" event can prevent in-house counsel and support staff from effectively coordinating the corporation's electronic data management programs with individual case requirements. We help clients outline the best methods to staff, design and implement the development of an Ediscovery Plan so that if and when litigation starts discovery can be handled efficiently.
Planning requires thoughtful collaboration with IT and business personnel. Several clients have engaged Kelley Drye for this process. Our educational approach is designed so that stakeholders understand and appreciate the reasons why pre-litigation planning is critical. In large organizations, we have suggested the creation of a pilot project to cover only a portion of the enterprise's operations or, as many organizations have done, address the problems associated with e-mail management first. This allows the company, as well as counsel, to learn how best to achieve the desired result.
In addition, we work with company personnel to tailor processes that are consistent with the company's overall business objectives, even if not strictly related to Ediscovery. This may include consulting on provisions in cloud computing service agreements to manage discovery costs, suggesting strategies on disposal of unnecessary information to reduce storage costs, assisting with improvements in information retrieval techniques, developing social media guidelines, etc.
Kelley Drye's litigators have successfully advised clients in:
- Identifying and launching a company EDiscovery Team to proactively manage issues.
- Developing Trigger Event Guidelines that ensure appropriate information preservation.
- Conducting an analysis to ensure a thorough understanding of how and where information is stored.
- Developing and communicating Document Retention Policies and Plans.
- Developing and implementing reasonable Legal Hold Guidelines.
A more detailed explanation of Kelley Drye's planning approach is contained in its white paper "Pre-Litigation Preparation and Implementation Plans for Ediscovery."
EDiscovery During Litigation
Technology is a critical tool for Kelley Drye lawyers managing Ediscovery and preparing for trial. However, technology alone cannot drive the case. Only after careful evaluation of the critical issues in the case, the results of early case assessment, and the needs of case management do we design and implement technology solutions. From the outset, we focus on the most efficient ways to identify and manage relevant electronic information including privileged documents, and anticipate problems and controversies that may arise as opposing sides clash over discovery requests. If these issues are not anticipated in the pre-litigation planning process, Kelley Drye litigation teams are prepared to apply many of the same planning steps and principles in real time during active litigation.
Many law firms outsource almost all of the processing and hosting work required in electronic discovery. However, Kelley Drye is often able to offer our clients cost savings of 50% or more on electronic data discovery processing work as compared to outside vendors.
We pride ourselves on having an in-house litigation support team that is extremely skilled in using Ediscovery software, and that includes experienced software and database developers. Because of our technical and legal strengths in this area, we have been frequently called upon by our clients to provide legal and technological advice on how to manage and correctly budget for the Ediscovery process. When the amounts of data are very large and the timelines are extremely short, requiring the use of resources outside of Kelley Drye, we have advised clients on product selection for early case assessment and review tools as well as vendor selection, with the goal of applying the right resources to a well-defined problem at the best possible price.
Electronic Case Management Strategies and Tools
There are numerous major projects the trial team must accomplish in complex litigation. All of the ESI and paper documents received and produced during discovery must be integrated to meet numerous objectives:
- Preparing for and taking depositions
- Preparing client witnesses for depositions and trial
- Developing a cohesive story
- Preparing motions for summary judgment, and other pre-trial filings
- Designating trial exhibits
- Developing direct and cross-examination outlines
- Designating deposition testimony for use at trial
- Preparing Proposed Findings of Fact in bench trials
We achieve these objectives by using specialized electronic case management ("ECM") software designed specifically for litigators, enabling them to collaborate across offices and coordinate their efforts to organize the evidence, facts and issues in a case, all at lower costs.
Lawyers' factual and legal analysis created on the ubiquitous "legal pad" or individual memoranda can be captured, preserved, and combined with other information in an easily retrievable central location. This reduces the need for the often duplicative and expensive process of reviewing important data and constantly integrating and updating the results to provide legal and factual memoranda, deposition summaries, and witness sheets for trial team members.
In a recent case involving a significant trial, a trial team of over a dozen attorneys in three different cities used ECM to analyze over 4,000 exhibits, designate deposition testimony, prepare witness examinations, and organize the order of proof for a complex false advertising and antitrust case. The use of ECM led to significant increases in efficiency and efficacy. The end result was a refined theory of the case and a multi-million dollar settlement for our client.
We also believe it is essential to use state of the art technology to support our client relationships as fully as possible. For that reason, we have invested extensively in various technologies, especially our leading edge intranet and extranet systems based on the Microsoft Sharepoint 2007 platform. We have a dedicated team of Sharepoint experts who can design and build custom extranets for our clients based on their specific needs for litigation management, including creating a secure, centralized resource for pleadings, forms, correspondence, status reports, and other case information.Kelley Drye was retained as National Litigation Counsel for a publicly traded company with multiple divisions and many suits pending in courts across the country. As part of our engagement, we were tasked with building a web based litigation portal that could be used collectively by Kelley Drye attorneys, attorneys serving as local counsel, and the client's in-house counsel. The system needed to combine detailed case specific information from a case management database along with docket, document management, and project management features. In-house counsel also required the ability to access and report at any time on the status of the over 100 litigations managed by the system. Using Sharepoint 2007 and extensive custom coding, Kelley Drye was able to deliver this system in less than 4 months.
This web portal currently manages over one hundred active matters including a custom site for each litigation featuring a case calendar comprised of all filing deadlines, deposition dates, court appearances, meetings with experts, and other key dates. The system also sends alerts via email to the relevant team members to advise them when an item changes in the calendar.