As Glenn Frye sang on the Beverly Hills Cop soundtrack, “the heat is on” and it is time to “make a break, you can win or lose.” It is fairly obvious that most counsel would prefer to win — but, instead of being proactive and on the street, they hope someone else is looking out for them.
Those attorneys who hope someone is looking out for them are reactive; that is, they solve problems after they occur and wait to confront the legal conundrums of their clients when they appear. Unfortunately, the 1′s and 0′s of electronic discovery favor a proactive response: In this era of large-scale disasters and debacles (such as the BP oil spill in the Gulf of Mexico and Toyota’s recent trouble with acceleration and braking), organizations that proactively address e-discovery can realize substantial benefits because they can focus on the legal issues and not on e-discovery. During the Vioxx mass tort litigation (which concluded way back in 2007), the Wall Street Journal reported that Merck & Co. was paying upward of $1 million a day for its discovery costs. Had the concept of proactive e-discovery been around then, Merck’s cost for e-discovery may have been significantly lower, because proactive e-discovery reduces the need for excessive production and review.
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