Peer to Peer Magazine

the quarterly magazine of ILTA 59 Peer to Peer Simplifying Risk and Compliance Challenges side of the coin, litigators representing investigated enterprises will benefit as they make sense of the new landscape. • Global Repercussions: Not to be outdone by their U.S. counterparts, we can also expect to see a further increase in E.U. based regulatory initiatives, exemplified by the scrutiny surrounding the recent Oracle/ Sun deal. This scenario is becoming increasingly typical as the growing number of international regulators, such as the Financial Services Authority (FSA), the E.U. commission and the U.K. competition commission, become more active. • Rise in cross-border litigation: The transfer of electronically stored information (ESI) across international borders has increased in both frequency and risk due to the hodge-podge of disparate privacy laws and blocking statutes. In response, many litigants are forced to collect, process and review electronic data "in-country" to minimize complications, but this method isn't always convenient or practical. • litigation's upward trend: Despite the fact that the economy appears to be stabilizing, approximately 53 percent of respondents to a recent legal industry survey conducted by Clearwell Systems and Enterprise Strategy Group said they expect the number of lawsuits and regulatory inquiries to increase by at least 20 percent in 2010. These statistics are mirrored by results from Fulbright & Jaworski's 6th Annual Litigation Trends Survey, in which 40 percent of respondents indicated their belief that litigation demands would increase in the upcoming year. • out-of-control costs: The Fulbright survey also indicated that cost containment is a high priority, with many listing e-discovery as one of the budget items spiraling most out of control. Even as price compression continues to accelerate, data proliferation has offset any perceived discounting, with the net being higher electronic evidence processing and review costs. Dean Gonsowski is a licensed attorney in the state of colorado and california, and a member of the sedona conference Working Group on Electronic Document Retention and Production (WG1), the Electronic Discovery Reference Model, and he teaches a series of continuing legal education (clE) courses on various e-discovery topics. Dean also serves as vP of E-Discovery services at clearwell systems, where he helps enterprise customers deploy best practices as they bring e-discovery in house. he can be reached at dean@ clearwellsystems.com. Facing these challenges may prove to be a daunting task for some, but a few promising strategies are expected to ease the burden: in-house control: • Reducing e-discovery costs ranked at the top of the list as a major initiative for most respondents in the Fulbright survey. The leading method listed (at 47 percent) was the initiative of taking e-discovery in-house. While other methods were listed, most didn't appear to have critical mass, including: using "clawback" agreements more often, enforcing document retention policies and negotiating with the opposition over the scope of discovery. Nevertheless, there isn't a single silver bullet, and attempts should be made across all phases of the Electronic Discovery Reference Model (EDRM). Early case assessment (Eca): • From a process standpoint, many litigants are becoming convinced that an ECA methodology is the preferred way to counterbalance some risks by preparing earlier for litigation in terms of budgeting, risk assessment, and "meet and confer" preparation. Fulbright survey respondents also described the benefits of ECA: Attorneys responded that, on average, performing ECA • results in a favorable outcome in 76 percent of cases. According to 87% of respondents, early case • assessment is beneficial for strategic planning and determining the best way to proceed with a case. Respondents indicated that ECA enables attorneys • to reduce the litigation expenses in 50 percent of their cases on average. alternative fee agreements: • The economic downturn has also accelerated the use of alternative fee agreements, with over a third of the Fulbright survey respondents indicating such arrangements were gaining ground. While there didn't appear to be a clear winner out of the alternative fee models (e.g., blended rate, capped, contingent, fixed, and performance/reward base) it is clear that the time and material model is under siege as companies try to control costs in difficult economic times. ILTA

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