E-Discovery 'Command' Culture Must Collapse

Collaboration must replace top-down culture before e-discovery costs can be reduced, Colo. event panelists contend

A dominant theme permeated Friday's fifth annual Colorado Association of Litigation Support Professionals' E-Discovery Summit: To succeed, litigants must embrace the concept of e-discovery teams and jettison the traditional vertical hierarchies where a senior partner or general counsel channels General George Patton.

"Command" models are doomed to failure, several panelists insisted. The time has come, they said, for true collaboration -- not only internally, but with opponents.

U.S. District Court (Colorado) Magistrate Judge Michael Hegarty kicked off the daylong conference, explaining his expectations from litigants. He served for 14 years as an Assistant U.S. Attorney with civil division in Denver, and was chief of the division for three years, before taking the bench in 2006. Hegarty surprised many in the office with his report that less than 1 percent of Colorado cases go to trial, and that very few litigators bring up electronic data discovery issues in early conferences, which "can be detrimental the the case."

Hegarty urged parties to adopt EDD protocols, and said he takes a hands-off posture in his court. "I believe in minimalist court intervention in how you want to try your case," he told the audience of approximately 160 paralegals, attorneys, and litigation support professionals at Denver's Grand Hyatt hotel. When asked if judges should raise issues about EDD if litigators did not, Hegarty said that basically, that was not the judges' responsibility.

Hegarty said he is skeptical about counsel's predictions about EDD costs. "I don't trust attorneys when they come in and tell me how much it will cost," he said. "I don't believe lawyers are lying," he said, by way of caveat, but went on to say that lawyers aren't properly estimating costs. He said he approves predictive coding in some cases, to help keep costs in check.

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Source: law.com
By: Monica Bay