“What does this mean to the CIO?,” asked Bace. “I guess, in many ways, the burden of legal success is slipping from the general council to the CIO. Because, in the contentious environment we’re slipping into, the fate of a case rests in the process rather than the merits of the case. And the company with the least flawed ediscovery processes potentially is going to win.”
Because of this, Bace advises his clients not save anything they don’t have to for legal or regulatory purposes. “As soon as (email) has no value left to it … get rid of ’em.”
But such tactics are only band aids, said Sedona’s Braman. What’s needed is a whole new approach to the discovery process. One where the lawyers, instead of posturing and playing legal games during the discovery process, instead cooperate and collaborate to get the facts on the table.
Although his view was criticized as “utopian” by Miller during the March 20 conference, Braman is undiscouraged. Technology can’t solve the problem, only lawyers can, and must if the system is to continue functioning.
“The legal profession needs to know … that’s there’s a difference between zealously representing your client in an adversarial system … verses getting the facts out on the table about which you are zealously going to litigate, he said.
“And when were are talking about the volumes of data that were talking about these days, there’s simply no room for gamesmanship in terms of simply getting the facts on the table.”