E Discovery

During Legalweek's “Rethinking Your E-Discovery Approach for In-House Counsel” panel, in-house counsel said it's best to take a risk- and financial-based assessment when evaluating what's the best e-discovery process for their company.

The panelists said while the plethora of e-discovery vendors and technology innovations can be enticing, attorneys shouldn't be blinded by the glitz of “innovation” when deciding their e-discovery process. Instead, e-discovery processes should be based on its impact to risk and the company's bottom line.

AIG vice president and assistant general counsel Dawson Horn III said that such metrics are key in fully assessing the quality of a legal department's e-discovery process.

“I think capturing that data and that type of scientific rigor is somewhat infrequent,” Horn said. “Though as people start to think about it more it's become more frequent. And one of the factors I point to is the increasing development of legal operations in certain corporate law departments in driving a more focused approach of what metrics are, how we can see and measure our costs and … how we can see and measure our risks over a course of data.”

Such assessment of data shows a legal department's needs are unique to individual companies and a one-size-fits-all approach to e-discovery isn't correct. Brian Corbin, executive director and associate general counsel of JPMorgan Chase & Co., said a legal department's needs are influenced by a company's size, industry, litigation activity, regulatory confines, maturation and a host of company variables.

Still, every company's e-discovery process should be rooted in risk aversion and cost. “You really have to assess where the cost-benefit analysis is for your company,” said Tom Morrissey, Purdue's senior director of legal operations and e-discovery. “Is there a value to make that change, that's what it comes down to.”

While law departments faced with many lawsuits are more likely to outsource much of their e-discovery, AIG's Dawson suggested that they look at handling this workload internally. “You probably have a basis for doing things more in-house,” he said. “If you don't, I think you really have to build a case for spending this amount building this entire interim structure.”

But while bringing more e-discovery processes in-house may seem like a better and cheaper approach to e-discovery, GCs should also evaluate if the move will increase risk.

“Ultimately, it's going to come done to ROI [return on investment] just like everything else,” said Corbin of JPMorgan Chase & Co. “If you can do it in a risk-averse and less expensive manner than a service provider and have the appetite to take on that risk, I think that's the linchpin for the whole thing.”