Brooklyn Bar CLE tries to help lawyers with tough task of eDiscovery

June 5, 2015 By Rob Abruzzese Brooklyn Daily Eagle

Danielle Levine and the Brooklyn Bar Association hosted John H. Ogden, Esq., Talia T. Page, Esq. and Tim McCorry for a CLE titled, "Taking the Fear Out of eDiscovery," at the Bar Association on Thursday. Eagle photo by Rob Abruzzese

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The Brooklyn Bar Association hosted attorney John H. Ogden and a pair of experts for a Continuing Legal Education (CLE) seminar titled, “Taking the Fear Out of eDiscovery,” on Thursday night. The CLE was designed to help small- and medium-sized law firms with the difficult process of collecting electronic evidence.

“These days everything is electronic, and data can be huge even if you have a small number of custodians,” said Talia T. Page, Esq. of RVM Enterprises. “There are things that you should think about, even if you have small matter, when you handle an eDiscovery project.”

Electronic discovery, better known as eDiscovery, refers to the process in which data is sought, located and secured with the intent of using it as evidence in a trial. Page and Tim McCorry, from RVM Enterprises, a company that handles eDiscovery for law firms, discussed the importance of eDiscovery and how lawyers can familiarize themselves with the terminology, technology and concepts involved with it.

Ogden, from New Jersey’s John Falcon & Singer P.C., discussed one of his cases from a year ago when a client of his needed to turn over electronic information. After doing what he considered to be a thorough search, his client turned up less than one gigabyte of data. When he turned that data over, however, the plaintiff’s counsel called him to let him know that their own search produced more of Ogden’s client’s emails than they had been able to produce on their own.

Ogden quickly realized that he was in over his head and called RVM Enterprises.

“I’ll never forget when I thought we were done, I produced the stuff to him, he called back and said, ‘we found more stuff in your systems through third parties than you produced in your search. You might want to take another approach to this.’

“We found, in self-collecting, under one gig of information,” Ogden said. “First round when RVM came in was 72 gigs, so I can see why we had credibility issues. Ultimately there were eight gigs to review, and we ended up producing 1,500 documents.”

McCorry, RVM Enterprises’ certified forensic engineer, discussed the process of collecting data and how his company efficiently reviews it. He also reviewed the methods and options for producing discovery to adversaries to try to give lawyers in attendance a better understanding of the technology.

“Unfortunately as the climate is changing, you really can’t use ignorance as an excuse,” said McCorry. “The burden is becoming that you need to understand and be able to advise your clients on what type of data is going to need to be produced going forward.

“Understanding what all of this information is will help you going forward because, in reality, you are the ones on the hook for it.”

An eDiscovery lawyer is an up-and-coming job in mega-law firms, but smaller firms should hire outside help in eDiscovery cases. Page said it is a good idea for lawyers to advise their clients to have policies in place when it comes to handling their own data, like emails, and that lawyers should understand those policies.

“I have colleagues, you have colleagues, who have walked away from a case because of eDiscovery and it was too much of a mess or too complicated,” Ogden said. “Bringing in an eDiscovery service provider, in my case, gave me badly needed credibility.

“Lawyers need to understand eDiscovery so they know how to advise their clients and to know when to bring in outside help,” Ogden said.