Notes from Carmel (er, Monterey)

I attended the Carmel Valley eDiscovery Retreat (CVEDR) two weeks ago, spent last week digging out from under everything that had piled up in my office, so now have a moment to share some thoughts on the event.

First, a big congratulations to Chris LaCour for putting together a successful event. I thought the content was among the best I've seen, especially the panel on defending the use of analytics. ;-) The work product series of panels explored the tension between work product protection and cooperative translucence. As you can imagine, there was some debate on the issue and highlights the need for more practical guidance—if the experts can't agree, what hope does the average practitioner have of walking this tightrope?

eDiscovery Journal's Greg Buckles was an excellent moderator and has written his own summary titled "CVEDR Take II – Monkeys and Magistrates in Monterey." Greg offered us some key takeaways and paraphrased memorable panelist statements. I would like to offer the following unattributed panelist comments or concepts to Greg's list:

  • 'Judge-consumable' information is information about e-discovery that is easily digested by non-e-discovery judges.
  • 'Containing the intrusion' into work product, meaning efforts to limit the scope of inquiry when the e-discovery process is called into question.
  • Many of us seem to agree there should be a presumption that a producing party has acted reasonably, requiring some good cause showing of a problem before delving into work product protected activities.
  • If you want to try some form of technology-assisted review but are uneasy about its defensibility, try it out on an opposing production.
  • Have a Consulting Expert who will have full access in a matter and a Testifying Expert who knows about the things they need to know to properly testify.
  • Along the same line, bifurcating custodian interviews into Technical Interviews and Substantive Interviews protects the substantive information from disclosure.
  • Who owns the work product protection when a firm chooses a vendor and works directly with them, but the client signs the contract?
  • An Information Flow Map may be more useful than a Data Map, because it shouldn't become outdated as quickly.

There were many more excellent quotes and ideas floated at the conference. Be there next year and hear them all. In the meantime, you can listen to the 2012 Judicial Panel at ESIBytes.

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