The Digital WarRoom team participated in a roundtable conversation this week, with ~80 close colleagues, friends, corporate counsel, law firm attorneys, service providers, and clients.
In a prior life, I was in the thick of the rising flash memory market as cell phones, PDAs, consumer and automotive electronics were transformed by new technology. It's difficult for me to imagine a group of executives from semiconductor manufacturers, cell phone designers, and embedded systems tools providers all gathering to discuss their challenges, pitfalls, failures, and cost overruns that inevitably happen as the market matured in the adoption of new technology. It just wouldn't happen. Intense competition to get to market fast with the best product created distrust among the players; there was more to lose than to gain from that kind of open dialogue.
Somehow, the Executive Counsel conference leaders, Browning Marean of DLA Piper and Robert Brownstone of Fenwick & West, create an atmosphere of trust and confidence that encourages broad participation and sharing of (sometimes dark or uncomfortable) experiences in e-discovery:
- Documents left unattended in a repository after the guardian law firm folded
- Batches of privileged documents accidentally produced to opposing side
- Corporate client with a small internal investigation, wants to "just open the custodian's email in Outlook to see what we are dealing with" (likely not a forensically sound approach)
- Struggles with litigation holds: notification to employees, tracking of responses and in determining when a litigation hold can be lifted.
- A widely shared view that early case assessment tools are too costly up-front; many attorneys shy away from ECA because of the high cost.
- Lack of comfort/trust with predictive coding; "I have to know how it works to defend it well"
When people share raw, painful experiences like these, they are looking for commiseration and maybe new ideas on how to avoid making the same mistake in the future. Executive Counsel provided front-line "e-discovery warriors" the opportunity to share the pain, and gain from the hard-learned experiences of others.
If you are not familiar with the Executive Counsel E-Discovery series, it will be worth your time to investigate. The ECI team, led by Neil Signore, has a knack for creating an inclusive feeling; you'll find it's hard to attend one of these events and sit on the sidelines - you'll be pulled into the conversation, and you'll come away with better ideas for corporate compliance, litigation management, quality control, and a myriad of other e-discovery initiatives.