The making of an e-discovery practice

The new Federal Rules on Electronic Discovery, which went into effect December 1, 2006, were considered by some to be an administrative compliance burden for companies, organizations and law firms alike. However, at Sedgwick, a small team of attorneys saw these new regulations as an opportunity to develop a unique set of legal services for the firm. This new practice expanded, beyond the practice of compliance counseling, into new frontiers that include technology-based capabilities assisting companies in the implementation of the policies, procedures and best practices often recommended to corporate and institutional clients.

So, how did this all begin? In early 2006, two Sedgwick partners, Keith Casto and Kenneth Rashbaum, identified the need to counsel companies with respect to changes in business practices driven by the new Federal Rules. These needs included the requirements that organizations track and manage electronic information, implement appropriate and reasonable records retention policies for electronic records, execute litigation holds on electronic information as needed, and comply with new regulations, timing and benchmarks related to the identification and exchange of such data during the litigation discovery process.

Further complicating these issues was the fact that case law varies in federal and state courts, and also differs considerably from state to state. For example, some states have many regulations, statutes and precedents in this area, while other states have incomplete and limited prior materials in this area.

Mr. Casto and Mr. Rashbaum quickly developed the concept of gathering materials (e.g., statutes, rules, prior case law and articles) as collateral to assist them in counseling clients in this changing area of law. They developed a vision of storing this set of collected works and data in a secure, Web-based collaboration system. Using this type of technology, the work product could not only be shared within their own law firm, but also could, after appropriate review and refinement of the information, be shared with existing and prospective clients as a representation of their knowledge of e-discovery.

Transforming this vision into reality became Mr. Rashbaum and Mr. Casto’s next aspiration. First, they approached Sedgwick’s Management Committee with a thumbnail sketch of their business plan and vision. Upon learning about the new Federal Rules and the potential business opportunities they presented, Sedgwick’s Management Committee decided to establish a new practice group focusing on electronic discovery, and appointed Mr. Rashbaum and Casto co-chairs of this new unit.

With the support and backing of the firm in place, Mr. Casto and Rashbaum began assembling the key components of the practice. First, they recruited and assigned specific resources within the firm, both attorneys and paralegals, to collect, vet, organize and summarize e-discovery material. This included case law, rules, statutes, articles, forms, templates and other types of information. Sedgwick quickly compiled and assembled an impressive set of materials in this area spanning many jurisdictions, states and points of view.

Next, the e-discovery team sought to identify a method of storing this material. Somehow, in today’s electronic age, storing the material on a shared network directory or in email folders did not seem adequate. So the team called upon Sedgwick’s technology-based subsidiary, Xerdict Group LLC, which is led by Michael Tanenbaum, the managing general partner of Sedgwick’s Newark, N.J., office, to construct a secure, Web-based depository for these materials. Xerdict, using its collaboration technology that in the past primarily was used for legal case management and document management purposes, added features to the system and then constructed a customized portal in about six weeks. This newly constructed collaboration system provided the ability to store all the aforementioned types of data, with an entity screen allowing the team to specifically code and organization each type of data in the precise manner dictated by the team, and also delivered a search engine allowing authorized system users to search for specific types of data (by court, jurisdiction, type of rule, state and many other searches).

The new system, named the “Sedgwick E-Discovery Portal,” also provided some additional features that were part of the Sedgwick’s standard client extranet. One such example was the litigation bulletin board feature, which was seen as a way for Sedgwick to provide clients with communication in a secure and privileged manner on sensitive issues (such as internal investigations).

With the building blocks of the information repository and the technology delivery mechanism in place, Sedgwick began promoting the new practice. The first step was to share this information with all other Sedgwick attorneys. This was done for many reasons. One was to share all this new e-discovery information within the firm so that each lawyer within the firm gained solid footing in the new Federal Rules and could counsel their clients accordingly. Furthermore, the sharing of this information within the firm served the valuable purpose of levering the collective wisdom of the Firm in addressing any questions, concerns or gaps in the collected data prior to sharing the information with clients.

Mr. Rashbaum and Mr. Casto then made the e-discovery portal available to selected clients. The feedback on this resource was that it was very helpful but the taste of this electronic discovery information resulted in clients asking for more assistance. Some clients wanted full service models, including not only the knowledge in the e-discovery portal but also the products needed to implement the recommendations of the e-discovery practice (e.g., how to identify and collect electronic data, the process of implementing litigation holds, the production of documents, the implementation of records retention policies, etc.).

In response to these needs, Mr. Rashbaum and Mr. Casto, working with members of the Sedgwick IT Department, assessed the capabilities of many of the leading technology providers in these areas. While Sedgwick maintains a vendor-agnostic outlook on technology vendors, the Electronic Discovery Team and IT Department strived to learn enough about each of the leading players to provide clients with ideas and information on companies providing services such as e-mail and electronic media collection, enterprise search engines, document review/assessment/production, and other areas.

Given that the Federal Rules on e-discovery were only recently adopted, Sedgwick believes this to be only the beginning of its journey assisting clients in this area. It is anticipated, by all the members of the e-discovery team and practice, that further innovation and creativity will be necessary in the coming months and years for firms wishing to be thought leaders in this new area of the law.