EDD FUD (Fear, Uncertainty and Doubt about E-Discovery)

As an e-discovery consultant, one might presume that I would take umbrage with Mr. Perkowski’s first paragraph in "Coping with the EDD Drumbeat," but I am positively assured he is not the only in-house attorney that feels this way:

"For the past several years, in-house litigators have been bombarded by swarms of consultants, vendors, and outside counsel reciting the potentially catastrophic effects of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP)."

FEAR Mr. Perkowski accurately characterizes the FUD that has surrounded the e-discovery industry for several years now and likens it to the apocalyptical panic of Y2K.  There’s a reason that 2006 commercial EDD revenues were $2 billion, up 51% from 2005, and expected to be around $4 billion by 2009. Yes those numbers mean that there is a true need for e-discovery, but as Mr. Perkwoski states, "e-discovery is not too different from any other form of discovery," so there has to be a better explanation for the millions of dollars burned on e-discovery services every year – perhaps there’s a little FUD infecting the industry if we were honest about it. Fear is an effective and motivating marketing tool.

Mr. Perkowski’s pivotal point in his column is that you should involve and educate your IT group, which is a most noble suggestion.

"…engage the IT department. Make it your best friend … they have a much better chance than you of knowing where the employees store data."

Interacting with your IT department is absolutely imperative in my opinion. But I would guess the reality is that most in-house attorneys couldn’t even tell you where their company’s IT department is located, much less be able to tell you the full name of a help desk grunt, or a network administrator. Attorneys and techies have historically abided as oil and water; and in my experience, that’s a big hurdle to overcome.

I appreciate how Mr. Perkowski states, "once you have found your IT department, … charge them with locating electronically stored information (ESI)" (emphasis mine). Simply finding the IT department is a good first step for many in-house counsel.

Towards the end of his column, Mr. Perkowski offers some beneficial nuggets of advice for dealing with outside counsel on your e-discovery projects:

"To keep a lid on the scope, you need to keep a keen eye on outside counsel. All too often, outside counsel collaborate with opposing counsel and agree to overly broad word searches. Sometimes that’s due to an abundance of caution. But it’s also because law firms assign e-discovery responsibilities to relatively inexperienced lawyers. Tell them you don’t think much of that staffing practice."

I’m sure Mr. Perkowski speaks from experience when he laments that many "law firms assign e-discovery responsibilities to relatively inexperienced lawyers," but why is this true? I offer two reasons:

  1. the "e-discovery responsibilities" are not considered as important as other tasks on a litigation matter at a law firm, and
  2. most of the experienced partners at a law firm are utterly confused and probably terrified about e-discovery concepts so they delegate to "inexperienced" associates who will NOT say no.

I was thrilled to see Mr. Perkowski’s column provide some insight on the tough issues of e-discovery from an in-house perspective, and I would be grateful to see more attorneys in his position share their thoughts.

Link to column.

P.S. Readers might also be interested in my recent article for Inside Counsel magazine’s InsideTech section entitled “E-mail Emergencies” where I discuss some simple steps for managing the risk found in employee e-mail.