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Leaders in Legal Business
E-Discovery Consultants and Companies Carolyn
Southerland1
Huron Legal
Former Managing Director
More than 90 percent of today’s records are created in electronic format.2 The continuing evolution of
legal and regulatory requirements place a great responsibility — as well as a great burden — on organizations to
preserve, collect, and produce this information. Complying with these laws and regulations is challenging in light
of the avalanche of electronic evidence, particularly as it is created in ever more diverse forms, whether in the
cloud, on mobile devices, or in social media.
E-discovery is more than a litigation phenomenon; it has implications for activities well beyond the scope
of the courtroom such as records retention, risk management, and the archiving of information. When these
processes are poorly managed, it leads to serious ramifications for corporations such as sanctions for the loss of
information.
Although most attorneys did not study metadata and cloud computing in law school, they are nonetheless
responsible for guiding clients through the maze of issues that e-discovery raises, including navigating the phases
of discovery and choosing the right service providers, service models, and tools.
Managing the Life Cycle of an E-Discovery Matter
Counsel must have a complete understanding of the life cycle of an e-discovery matter. According to the
Electronic Discovery Reference Model (EDRM), a framework for the discovery of electronically stored
information (ESI), the life cycle consists of nine stages: information management, identification, preservation,
collection, processing, review, analysis, production, and presentation.3 If an organization has litigation on a
regular basis, ideally it should have processes in place for handling each of these phases.
Information Management
Information management is an ongoing program that actually precedes litigation, but it is included in the
EDRM because a client’s ability to successfully navigate the e-discovery process relies in part on its information
management practices. The more information a client has, the greater the risk that information poses, particularly
when the client does not understand why it creates, uses, and saves that information.
Ideally an organization’s information policy is developed with the input of representatives from various
departments, including legal, records, compliance, human resources, and key business units, who will share
insight into the potential risks and give input on retention guidelines for each category of data. The goal is to
preserve data only as long as it is needed for operational or legal reasons.
One important caveat: Establishing an information management program and/or disposing of records
pursuant to the retention program are tasks that should be done in the ordinary course of business and not in
connection with specific litigation. Disposing of data in anticipation of or at the onset of litigation is a red flag to
courts and opposing counsel, increasing the risk of potential sanctions.
1 Carolyn Southerland has more than 20 years of experience as a commercial litigator in one of Houston’s largest law firms. She handled complex matters
involving contract disputes, patent infringement, professional malpractice, and energy-related matters. She also has extensive experience in representing
clients in matters before a variety of regulatory agencies. In 2007, she left the practice of law to enter the world of consulting on electronic discovery issues
with Huron Legal where she served as a managing director until 2015. She is a graduate of the University of Texas and the University of Houston Law
Center. She is a frequent speaker and author on various issues involving electronic discovery.
2 The Sedona Conference, The Sedona Principles Addressing Electronic Document Production, Second Edition (June 2007),
https://thesedonaconference.org/download-pub/81.
3 EDRM, Electronic Discovery Reference Model Stages, http://www.edrm.net/resources/edrm-stages-explained (last visited October 29, 2014).
75
E-Discovery Consultants and Companies Carolyn
Southerland1
Huron Legal
Former Managing Director
More than 90 percent of today’s records are created in electronic format.2 The continuing evolution of
legal and regulatory requirements place a great responsibility — as well as a great burden — on organizations to
preserve, collect, and produce this information. Complying with these laws and regulations is challenging in light
of the avalanche of electronic evidence, particularly as it is created in ever more diverse forms, whether in the
cloud, on mobile devices, or in social media.
E-discovery is more than a litigation phenomenon; it has implications for activities well beyond the scope
of the courtroom such as records retention, risk management, and the archiving of information. When these
processes are poorly managed, it leads to serious ramifications for corporations such as sanctions for the loss of
information.
Although most attorneys did not study metadata and cloud computing in law school, they are nonetheless
responsible for guiding clients through the maze of issues that e-discovery raises, including navigating the phases
of discovery and choosing the right service providers, service models, and tools.
Managing the Life Cycle of an E-Discovery Matter
Counsel must have a complete understanding of the life cycle of an e-discovery matter. According to the
Electronic Discovery Reference Model (EDRM), a framework for the discovery of electronically stored
information (ESI), the life cycle consists of nine stages: information management, identification, preservation,
collection, processing, review, analysis, production, and presentation.3 If an organization has litigation on a
regular basis, ideally it should have processes in place for handling each of these phases.
Information Management
Information management is an ongoing program that actually precedes litigation, but it is included in the
EDRM because a client’s ability to successfully navigate the e-discovery process relies in part on its information
management practices. The more information a client has, the greater the risk that information poses, particularly
when the client does not understand why it creates, uses, and saves that information.
Ideally an organization’s information policy is developed with the input of representatives from various
departments, including legal, records, compliance, human resources, and key business units, who will share
insight into the potential risks and give input on retention guidelines for each category of data. The goal is to
preserve data only as long as it is needed for operational or legal reasons.
One important caveat: Establishing an information management program and/or disposing of records
pursuant to the retention program are tasks that should be done in the ordinary course of business and not in
connection with specific litigation. Disposing of data in anticipation of or at the onset of litigation is a red flag to
courts and opposing counsel, increasing the risk of potential sanctions.
1 Carolyn Southerland has more than 20 years of experience as a commercial litigator in one of Houston’s largest law firms. She handled complex matters
involving contract disputes, patent infringement, professional malpractice, and energy-related matters. She also has extensive experience in representing
clients in matters before a variety of regulatory agencies. In 2007, she left the practice of law to enter the world of consulting on electronic discovery issues
with Huron Legal where she served as a managing director until 2015. She is a graduate of the University of Texas and the University of Houston Law
Center. She is a frequent speaker and author on various issues involving electronic discovery.
2 The Sedona Conference, The Sedona Principles Addressing Electronic Document Production, Second Edition (June 2007),
https://thesedonaconference.org/download-pub/81.
3 EDRM, Electronic Discovery Reference Model Stages, http://www.edrm.net/resources/edrm-stages-explained (last visited October 29, 2014).
75
