Ropes & Gray, Day Pitney and Littler Mendelson are among law firms that have over the past year hired lawyers to act as electronic discovery counsel, seeking to boost firm knowledge in the area and meet growing client demand for e-discovery guidance.
The new counsel are training colleagues on evolving e-discovery case law and rules, fielding questions in the area from litigation colleagues, tracking e-discovery and technology vendors and sitting in on client meetings to offer e-discovery expertise, the lawyers and firms said.
With the climbing complexity and cost of e-discovery, which involves mining electronically stored information for litigation purposes, law firms are searching for new tools to meet clients' needs. E-discovery counsel, acting as a central point of reference on the matters, are emerging as an answer.
"We saw that clients consistently had the same need and it was a need for information, a need for advice and need for counseling in e-discovery areas and the related compliance fields," said Marko Mrkonich, president of Littler Mendelson.
Littler Mendelson last September hired Paul Weiner as its national e-discovery counsel.
Many of the new e-discovery counsel spend about half their time on internal firm needs and half on external client matters, billing as a specialist for any time worked on cases. They may provide clients with general guidance on records-retention policies or readiness plans for litigation or on specific cases, giving advice on "litigation holds" that require preservation of information or strategizing the identification and collection of electronic information.
"The firms who are hiring someone are doing it because they hope to ultimately have a more standardized approach to dealing with e-discovery," said George Socha, a St. Paul, Minn.-based consultant and a co-founder of the Electronic Discovery Reference Model, a group that develops guidelines in the area.
The sheer volume and cost of data to be gathered is also driving firms' interest in streamlining their approach. Socha estimates that $2.79 billion was spent on e-discovery last year, up by 43 percent from the prior year. American businesses have 90 percent of their information stored electronically, and 70 percent of that never gets to paper, Weiner said.
Companies have led the way in hiring lawyers to focus solely on e-discovery issues, creating uniform methods for dealing with repeating litigation patterns. Verizon Communications Inc. hired Patrick Oot in that role in 2005 mainly because Verizon wanted a "defensible, repeatable process," Oot said.
Cynthia Courtney, who was hired as electronic discovery counsel by Day Pitney in September, came to the firm from Cigna Corp., where she managed massive health care class actions laden with e-discovery. When she approached Day Pitney about creating a e-discovery post that would act as a "bridge" among technology people, lawyers and clients, the firm was "immediately enthusiastic," she said.
"Clients need the preparation, the litigation readiness in this area, and I think some of the cases have gotten people's attention," she said.
Many cases that have gotten lawyers' attention are those in which judges have imposed sanctions for lack of compliance with e-discovery mandates and related missteps, including Zubulake v. UBS Warburg, No. 02-01243 (S.D.N.Y), decided in 2003 and 2004, and Qualcomm v. Broadcom, No. 05-01958 (S.D. Calif.), decided last year.