Published on Jul 20, 2020 Discovery complexities have taken on a whole new meaning during the COVID-19 crisis. It seems that every aspect of eDiscovery is now virtual, eliminating in many instances the human touch that is so often helpful for obtaining crucial evidence from data custodians to support claims or defenses.
Given these and other complexities, it’s a relief to know there are still savvy experts in the field of eDiscovery who can help clients address difficulties and who do so with a human touch. One of the top experts on these issues is Corey Lee.
Corey is an experienced trial lawyer who specializes in representing corporate clients in commercial litigation. In connection with these matters, Corey uses his eDiscovery expertise to appropriately position matters in discovery toward a favorable resolution for his clients. Given his discovery and trial expertise, Corey is regularly in demand on the eDiscovery speaking circuit and has also authored insightful articles on key eDiscovery issues.
Corey and I are each active members of The Sedona Conference where we have the opportunity to discuss eDiscovery issues confronting clients. I recently had a chance to catch up with Corey on some of the eDiscovery issues on which he is working.
I was first exposed to eDiscovery as a baby lawyer at a large New York firm. I was working on a large antitrust matter, where we had a team of over 20 lawyers. At one point in the case, I was offered the opportunity to help collect the CEO’s documents. This led to me helping do the preparation to defend his deposition. I was also given the responsibility of overseeing a team working on the finalization of a privilege log with over 10,000 entries. From this early experience, I saw that working in eDiscovery would give me career opportunities that I otherwise would not have.
One of the things that I enjoy about eDiscovery is that there is a constant learning process. There are always new tools for communication, which result in having to learn new ways that information will need to be collected, reviewed, and produced. Also, there are always new tools coming to the market to assist with the analysis and review of information.
I could do without the perception that eDiscovery is something you try not to get wrong, instead of being a valuable skillset that can give your team an advantage when done well. For example, while you may effectively preserve and produce information, you are not taking full advantage of the information available to you if you are not thinking about how the information can be used for early case assessments, or using data to finds trends that exist.
The biggest challenges my clients are facing are related to preservation and collection. As employees have moved out of their offices, they are using new tools to allow them to be effective. When tools are selected (sometimes by employees without corporate involvement), future eDiscovery needs may not be considered as to how data may need to be preserved or collected. Additionally, just doing routine email collections has become a much more burdensome endeavor. With everyone working from home, collecting 100s of GBs of data, which has become common for a single custodian, can be a challenge.
While there is always pressure around pricing and predictability, the financial challenges that are the result of COVID-19 have made these concerns ever more present. Organizations are doing what they can to make sure that fat is cut out of budgets and that the funds that are being spent are advancing their interest. Even in smaller matters, this presents an opportunity for practitioners to show how proper planning, cooperation, and knowledge of available tools can result in projects that are defensible, predictable, and efficient.
My advice is don’t be afraid to ask questions. In-house counsel should ask questions to make sure that they are comfortable with eDiscovery plans in place for matters and also to make sure that outside counsel really understands how the company communicates and stores information.
Vendors should also ask questions to make sure that they understand the instructions of counsel, but more importantly, to make sure that counsel really understand what they are asking a vendor to do, as counsel may not be aware of advances that can make tasks much more efficient or how various platforms differ.
