The document discusses the changing landscape of eDiscovery as corporate clients increasingly manage eDiscovery in-house using new technologies. It notes that outside counsel needs to understand these technologies and changes in order to create value for clients through collaboration, ensuring complete productions, and advising on the appropriate role of tools versus human expertise. Outside counsel that can educate clients and help balance in-house and outsourced resources will be best positioned to maintain strong client relationships in this evolving environment.

1. Navigating the Sea of Change in eDiscovery Technology
A new wind sets the course for new opportunities
Larry Lieb, National Director of eDiscovery, Esquire Solutions
Chris Acosta, Litigation Support Director, Nossman LLP
Corporate cost‐cutting and landmark evidentiary rulings, such as Judge Scheindlin’s Pension Committee
opinion, have led to a dramatic shift in traditional approaches to eDiscovery. With the proliferation of
new enterprise search and review solutions, corporations can now reduce expenses by managing their
data through in‐house departments. And, with the employment of savvy IT teams or vendors, these
corporations are often three to five years ahead of outside counsel in terms of eDiscovery technology
capabilities.
But in this ever‐changing tide of eDiscovery, outside counsel can create opportunities and enhance
relevance by providing the technological ESI proficiency that in‐house counsel may not have.
But success requires far more than employing the right technology strategies and solutions. It requires
an in‐depth understanding of all the changes in motion, and the development of a game‐plan that not
only protects corporate client interests, but meets or exceeds their need for cost‐efficiency.
The Forces of Change
A More Informed Judiciary
Judge Scheindlin’s Pension Committee opinion asserts that counsel must have a firm a grip on both
technology and literally all discoverable and responsive evidence. That opinion was merely the
latest shot over the eDiscovery bough, although arguably the loudest, as it elevated counsel’s failure
to meet eDiscovery obligations from the rank of negligence to gross negligence.
The industry understandably has taken notice, yet there is little consensus on a go‐forward plan that
increases confidence by reducing risk. To accomplish this, a broader collaborative must now be built
between inside and outside counsel, which must also include empowered IT and litigation support
professionals, to ensure all potentially relevant records and custodians are considered. To not do so
puts counsel – and now clients – at increasing risk of damaging sanctions.
A More Informed Client
Corporations searching for cost‐efficient eDiscovery options can be likened to today’s medical
patient. Just as a patient takes more control of his health by researching symptoms and looking to
peers for advice, corporations are now researching and adopting in‐house solutions – in effect, self‐
diagnosis.
If viewing the scenario from a doctor’s perspective, however, years of intensive training has taught
that there are pros and cons to a patient who has first researched his symptoms online. The pros:

2. Informed patients may identify and address symptoms while there is still time to treat them. The
cons: To the untrained eye, symptoms are often misdiagnosed, leading to a host of other problems.
For, outside counsel this scenario is on a parallel track with eDiscovery. Given the pressures on
corporate counsel to reduce expense, the appeal of in‐house solutions is strong – but a mistaken
self‐diagnosis is indeed grave. The proliferation of technologies using simple interfaces that run on
familiar enterprise operating platforms has only increased the allure of in‐house diagnosis and
solutions.
A successful client relationship depends upon counsel’s ability to understand and leverage a
corporate client’s eDiscovery solutions to full potential.
Clients Have Embraced Electronic Documents
Paper discovery is nearing extinction. Its demise can come none too soon for corporate counsel
who for years have observed laborious and costly hours of paper review.
The most distinct changes from paper to electronic records occurred around 2006, when electronic
discovery solutions were developed with corporations in mind, such as Clearwell Systems, Symantec
Enterprise Vault, Mimosa, StoredIQ, Encase Enterprise and others. For the first time in history,
corporations created internal technology departments. This trend shows little sign of abating.
A New Flow of Information
eDiscovery technology managed by corporations now alters the typical flow of evidentiary materials
to a more controlled model, in that records may not leave a corporation’s database at any point
during eDiscovery until production. Without control of eDiscovery management, outside counsel
may receive filtered data sets that inadvertently overlook responsive records. Close collaboration is
necessary more than ever to ensure all are working from the same ratified list of keywords and
search protocols.
With the introduction of corporate‐hosted discovery databases, inside counsel less frequently
employ outside document review and hosting services. As a result, law firms that have set up large
first‐pass document review teams have to adjust their revenues accordingly.
Lifting Anchor in a Sea of Change
Evolution of eDiscovery ownership may not have been foreseen, but should be recognized for what it is
– a change in traditional roles, not an end to potential. There are several strategies outside counsel can
adopt to maintain and grow its corporate client base.
Build and Communicate Unique Value
Given a more eDiscovery‐informed client, outside counsel must now be fully educated on all
available litigation support applications. Counsel should encourage clients to think of

3. eDiscovery tools as blueprints, and that only an experienced architect can ensure the finished
product meets the specific needs of the client now and in the future.
In short, one software application or hosted review platform does not fit all needs. Outside
counsel can play a pivotal role in both the firm’s and your client’s long‐term satisfactions with
eDiscovery tools, reinforcing value by ensuring any and all eDiscovery contingencies have been
anticipated.
Strike a Good Balance on Productions
Agreement on eDiscovery production is essential – it can limit delays and avoid multiple
information requests. By educating clients at the beginning of the process, outside counsel can
prevent the over‐filtering or under‐filtering of data. This is a delicate balance, for sure, as
clients may be hesitant to turn over entire custodial files, such as email inboxes, due to cost
concerns. But by helping a client understand the cost/benefit of well‐planned, appropriate
production, outside counsel can provide an eagle‐eye view that in‐house counsel or an IT
department cannot.
Advocate for Greater Collaboration
Outside counsel, retained for unique expertise and litigation skills, can take advantage of
ongoing meetings with each client to discuss not only status, but broader issues of expectations,
roles, responsibilities and strategies related to eDiscovery.
Whether corporate clients perform electronic discovery in‐house or out‐of‐house, outside
counsel can help clients plan and document the corporation’s litigation readiness policy. This
includes clarifying the IT department’s goals, the parameters of their dedicated eDiscovery
resources, the creation of a data map and the setting of clear‐cut data handoffs.
The evolution of eDiscovery is dramatically changing the relationship between corporate clients and
outside counsel. It will continue to change as eDiscovery technologies advance. Newer and smarter
technologies may, in fact, accelerate a corporation’s reliance on, and confidence in, its eDiscovery
management capabilities.
In this sea of change, a fresh insight and keen understanding of both the eDiscovery process and the
supporting technology can help outside counsel set a new course, delivering distinctive, complementary
support to corporate clients.