Best Bets: E-Discovery

By Jake Widman
     
In legal-tech circles these days, the hottest issue by far is e-discovery. But it's not just a hot issue for tech-savvy law firms. Clients too are becoming more aware of how critically important e-discovery can be. Hence, the potential for a whole new practice area.
      "We're at the point where it's expected that any decent law firm would be equipped to deal with electronic-discovery issues," says Anthony Schoenberg, a partner at Farella Braun + Martel, a 121-lawyer law firm in San Francisco.
      At Squire Sanders & Dempsey, a firm with more than 850 lawyers worldwide and three California offices, San Francisco partner Joseph Meckes echoes the point: "Nowadays, nearly all clients face the prospect of electronic discovery as a significant cost of litigation. You want your client to know that you're not going to be getting up to speed on their dime."
      To that end, a number of firms, including Squire Sanders and Farella, have set up e-discovery task forces over the past few years that work with both lawyers and clients on e-discoveryrelated issues. As Schoenberg observes, "The number one thing we probably do [on our e-discovery task force] is keep each other educated. We have monthly meetings, and we put on presentations for the whole firm as well as clients."
      Meanwhile, a few firms have actually gone further, establishing formal e-discovery practice groups. One is McDermott Will & Emery, which has about 1,100 lawyers in 15 offices around the country and overseas. In early May the firm officially launched its Electronic Data Management, Privacy & Discovery Group, consisting of more than 30 attorneys in the areas of litigation, intellectual property, and regulatory affairs. The group was a long time coming, says group cochair Geoffrey A. Vance. "We had a task force since the late 1990s, but we suddenly had an epiphany: We're proud of our expertise, and decided we should let our current and prospective clients know about that." The firm recognized that its clients were increasingly being faced with problems relating to the storage and management of electronic data, even if they were not involved in litigation. And the task force members were involved with e-discovery so much that it became worthwhile to market their expertise.
      Having a separate group makes it easier to consult with clients well before litigation starts on how to store and manage information. Vance's group works with clients on how they can better organize, preserve, and manage electronically stored information (ESI) in the regular course of business, as well as draft and enforce privacy and confidentiality policies before they are sued. And though the firm began by promoting these services only to existing clients, that has changed with the launch of the new practice group. "We have already started to hear from new clients who have asked us for help on these issues," says Vance.
      Dan Sedor, partner and cofounder of the Discovery Technology Group at Jeffer, Mangels, Butler & Marmaro, says his firm has also seen new clients seeking e-discovery help. The firm's e-discovery expertise grew out of its involvement in Medtronic Sofamor Danek, Inc. v. Michelson (2004 U.S. Dist. LEXIS 30607 (W.D. Tenn.)). "We cut our teeth on electronic discovery in that case," says Sedor. "Afterwards, a couple of us started thinking about how to work that experience into something that would benefit the firm's clients going forward.
      "Now part of our practice involves counseling clients on document-retention programs," continues Sedor. "We get them to identify and characterize their sources of ESI, so they know what they have and how each set of data relates to possible litigation."
      Sedor sees new clients come to the firm because they know electronic-discovery preparedness is important. "The general counsel population are looking for solutions. In increasing numbers, they want to make sure their companies are ready."
      Thus, with the birth of e-discovery practice groups, firms are learning that e-discovery expertise is not only a needed skill, it's also knowledge that can be marketed.
     
      Jake Widman is a contributing writer for Cailfornia Lawyer.
     

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