One of the more intriguing developments with the various changes in evidence rules and judicial expectations that impact e-Discovery is the steady evolution of professional responsibility codes pertaining to client/attorney collaboration. For example, outside counsel is increasingly expected to be knowledgeable about the technology used during e-Discovery, and to articulate to the court how e-Discovery was managed with the corporate client.
“Many discussions of the relationship between in-house law departments and outside counsel take as its unspoken assumption that it’s a zero-sum game, where gains for one are losses for the other,” said Bruce MacEwen, founder of the legal consulting firm Adam Smith, Esq., and an attorney who has practiced both in-house and at a law firm. “A much more realistic and more business-driven view is that it needs to be a collaboration. While the obvious shared goal is to ‘solve legal problems,’ the marketplace and client/advisor reality is more nuanced and should create a stronger intrinsic bond. Any law firm that doesn’t care about getting closer to its clients, or any client who secretly wants to undermine its preferred law firms, has problems far larger than what’s on the legal agenda.”
Of course, this conversation is not new in our industry. As far back as 2008, Law360 reported that e-Discovery collaboration between in-house legal departments and outside counsel was improving – and yet we continue to see major cases of process failure that lead to spoliation and failure to preserve evidence sanctions. Why do litigation professionals instinctively understand the importance of properly managing data throughout the e-Discovery workflow and yet continue to struggle with the execution?
Perhaps one answer is the absence of a comprehensive e-Discovery review software platform on which all parties can collaborate. There are four key advantages to having your in-house legal department and outside law firm using the same e-Discovery review software platform while working on a case:
1. Less Data Movement
A single e-Discovery platform means you will have fewer “data hops” as documents enter the workflow and move across the EDRM continuum. Less data movement inherently reduces the potential for errors in investigation, collections, processing, review and production.
2. Decreased Risk
There is no way to eliminate human error in e-Discovery, but a single review platform significantly decreases the risk of sanctions for failure to preserve evidence, data spoliation and other serious considerations. This is a growing problem that many experts feel is bound to be more commonplace under the new federal electronic discovery rules.
3. Improved Collaboration
The best e-Discovery software tools will provide a real-time review platform that allows secure collaboration, regardless of where any member of the litigation team is located. An in-house/outside counsel team that is better able to work together on e-Discovery is going to be more efficient in their workflow, more accurate in their production and more responsive to each other throughout the process.
4. More Favorable Pricing
When in-house and outside counsel agree to work on a shared platform for e-Discovery, it creates obvious economies of scale. Some software vendors will even offer price breaks and incentives if a corporation wants to provide their outside counsel with a license of their review software to facilitate collaboration.
There is a wide range of reasons why it is important for in-house counsel and law firms to better collaborate during e-Discovery, ranging from the ominous court-ordered pressures and the strategic litigation management considerations, to the important business efficiency factors. One tool to support the effort to step up your collaboration is a single e-Discovery review software platform.
AccessData’s AD eDiscovery® software product is an end-to-end platform for in-house legal departments that supports the entire e-Discovery workflow. For more information, please visit www.accessdata.com.
Nadine Weiskopf, Vice president of product management, forensic & e-discovery solutions at AccessData. [email protected]
Published January 29, 2016.
