Our first blog features Donald McCann, Litigation Support Manager at Benesch, Friedlander, Coplan & Aronoff, LLP. Mr. McCann works in Benesch’s Cleveland office and provides e-discovery consulting and matter management services to Benesch’s attorneys and clients. In addition, he develops electronically stored information (ESI) protocols for the firm and makes recommendations regarding technology. Hence the word expert.
Tell us about your background and how long you have been working with cases involving e-discovery?
I have been working in litigation support for approximately 16 years. I spent my first year in the industry working for a Cleveland-based vendor and after that year I opened my own local service bureau. At that time, the work was primarily paper-based so I can say that I have been involved in ediscovery since ediscovery really became an issue. After about 6 years running my own company, I became the in-house litigation support resource at Baker Hostetler and then came to Benesch as the Litigation Support Manager in 2012. In my past life, I worked as a Clinical Psychologist.
Have you used any advanced tool in e-discovery cases such as email threading or predictive coding? Why or Why not?
On a case-by-case basis, yes. Since additional fees may apply with these services, we take that into consideration and make certain it fits our needs in the matter. As with many law firms, we have a number of high volume, document intensive matters but the majority of our cases are more moderately sized. In those cases, the attorneys often still have a higher comfort level with traditional document review. Email threading is an easier sell because it represents a way of organizing and streamlining the review but the software is not making review decisions. Predictive coding, depending upon what you mean by the term, is still seen by many attorneys as a bit of a “black box” process. And it is important to understand that the technology is only as good as the decisions and processes you use to implement it. It is probably less risky to not use the technology than to use it incorrectly. On our larger cases, we often use a hybrid approach and utilize near-duplicate analysis and predictive coding to help prioritize document review by more quickly identifying key documents of interest.
Do you believe that your clients are becoming savvy to the e-discovery process and costs?
Like most firms, our client profile is very broad. Our larger clients can be quite sophisticated, deploying CIRT teams, forensic software, and sometimes processing and in-house review teams. We also service clients who manage all their IT services through third party providers. The level of ediscovery knowledge varies dramatically, and is not always based on the size of the client. I have worked with large clients who have spent a considerable amount on software but do not have sound protocols in place to use the product. Sometimes they purchase a tool but neglect to get staff members the requisite training/certifications to utilize it. I do believe that our clients in general are more aware of ediscovery as an issue, even if they are not experienced at the bits and bytes level.
What do you believe are the biggest e-discovery challenges that companies are facing today?
At the risk of sounding cliché since it has been a hot topic for a while, I think Information Governance is the big challenge. When ediscovery started becoming an issue, many people thought the data volumes would be self-limiting due to storage and backup costs. Today storage is cheap and there are painless backup solutions. The result is that many clients lack thoughtful or enforced data management policies leading to an often unstructured landscape of enormous quantities of disparate data. Aside from information volume, a significant challenge of Information Governance is data security. In the modern workplace of BYOD, remote employees, and cloud computing, the notion of “command and control” of your data has to be redefined. The consequences of failing to protect sensitive data can fatal and yet, increasingly, the weak link may not be the client but some third party upon which their business relies.
In your experience, how well versed are the attorneys you oppose in e-discovery and what kind of challenge does that create for you in your practice?
As with clients, the level of sophistication amongst attorneys varies greatly. Some are very knowledgeable and even function in the role of “ediscovery attorney” at their respective firms. Others know that ediscovery is a topic they will need to discuss but are less educated on the details. Of course, there are always a few members of the profession who seem to think that ediscovery will simply go away if they ignore it. As a non-attorney in litigation support, I truly believe that the most sophisticated opposing counsel are also often the least adversarial, at least with respect to ediscovery. They recognize that by embracing the spirit of the Rules and understanding their clients’ data and systems, they can minimize wasteful discovery disputes, find useful information more quickly, and spend their time actually litigating the merits of the case. It is probably the most challenging to deal with someone who has a bit of knowledge from a conference or CLE but not the experience to know that there is not necessarily a simple checklist for ediscovery.
If you liked this blog article you might want to check out our eDiscovery Spotlight Featuring John Cook, Barclay Damon