Balancing In-House and External eDiscovery Resources

Barry: Hi everyone, I’m Barry Murphy with eDiscovery Journal. I think quickly we’ll have each of the panelists introduce themselves so that you get a sense of who we are and what our backgrounds are.

So I’m Barry Murphy. I’ve been with eDiscovery Journal for a couple of years now. I have worked in the e-mail archiving software world and also was an analyst at Forrester Research covering eDiscovery records management and archiving.

And I also have with me Kevin Esposito and I’ll have Kevin introduce himself.

Kevin: Good afternoon, everyone. I’m Kevin Esposito and I’m the managing director of a firm called Rivulex in the New York City area. We are a consulting firm that handles eDiscovery process issues for mid- to large-size organizations. Prior to founding Rivulex about four or five years ago, I had worked for both United Parcel Service and Pfizer, taking care of eDiscovery operations and preparing a lot of work along those lines. Now I do that for other organizations and I do contribute to eDiscovery Journal.com as well.

Peter: And hello, this is Peter Livingstone. I am Vice President of Technical Services with Digital Reef. In that role, I have been working with a lot of corporations who are planning and restructuring their eDiscovery practices. At Digital Reef, I manage the presales engineering team, the post-sales customer service organization, and our own Discovery Center, where we are processing matters for law firms and enterprises.

Barry: We’ve got a great, diverse panel and I think we’ll talk through a lot of issues around today’s topic: Balancing In-House and External eDiscovery Resources.

Before we dive into the content, I wanted to pose a question to Kevin because he’s been deep in the weeds of eDiscovery on the corporate and consulting side. There are two trends that keep coming up in my interaction with folks that I think are very much related to the discussion that we’re going to have today. One of those trends is the need for law firms to actually certify, as part of the rules of procedure, the information management efforts of their clients when it comes to the steps that they took to manage the information for eDiscovery. That, coupled with the trend of law firms getting involved in matters earlier and earlier, which I think puts some corporations in a difficult place because they are not great in collection and preservation just yet. But I wanted to pose that to Kevin: do you see those two things as being issues that are coming up for your clients today?

Kevin: Well, it’s something that everyone has to deal with. The case law that’s out there clearly indicates that there’s a preference from the courts for something that’s very Reaganesque in the sense that they’re saying, “trust, but verify.” So the case law indicates that you can no longer just trust the information that is provided to you by a corporate client; you need to verify what it is that they’ve done internally in order to prepare all of their information for discovery and ultimate production. So if you’re going to be verifying it, it’s best to be involved earlier in the process rather than later.  You don’t want to be brought into a case further on down the road when the collection’s been done and perhaps some processing has also been done. It’s very hard to object at that point as to any steps that have been taken, because the client’s gong to push back and say, “Well, I’ve already done all this work and spent all this money.”  So it really behooves the clients to make sure they get their law firms involved earlier in the process. And then you’re going to have to have the balancing act of how many things does the outside law firm take care of and how many things do the inside people take care of. There have been a number of eDiscovery conferences over the past 10 years or so where everyone was being told “bring everything in-house, bring everything in-house” for cost savings and other issues. You need to balance both your internal and external resources—the whole point of this presentation today. The law firms need to get in there earlier in order to take care of their obligations, and it behooves the clients to make sure that they get the law firms in there before they’ve done something that’s a misstep.

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