(L to R) Eric Lamison, Mark Chandler and Daniel Black of Cisco Systems
Since the legal department began its lurch into the Age of the Internet, plenty has been written about the subject of e-discovery—the complexities, the costs, the regulations… the list goes on. For the most part, the types of resources and personnel required to keep projects moving forward means e-discovery is rarely a top-level issue. Rather, it is an area that has far-reaching implications across the legal department. To adjust to today's Big Data landscape, corporate counsel are looking for ways to organize data volumes, increase efficiencies and reduce costs—a tall order for any business.
Given that e-discovery represents a significant portion of today's legal budget, corporate counsel that have a holistic understanding of e-discovery are better equipped to set priorities and make decisions. InsideCounsel had the opportunity to catch up with the top corporate counsel at Cisco Systems to discuss the pain points and best practices of the tech giant's e-discovery processes, sousing out what legal leaders can learn from Cisco to better manage this technological albatross.
Today's e-discovery challenges are, at the very least, daunting and seemingly getting more complex by the minute. Most in-house attorneys report challenges in handling large volumes of data.
A recent BDO Consulting survey reveals almost half (48.4 percent) of respondents identified “understanding the universe of potentially responsive evidence early in the case” as the most important priority. Predicting the total cost of e-discovery (15.6 percent), reducing e-discovery review fees (14.1 percent), and the ability to use previously collected and processed electronically stored information (ESI) for other matters (12.5 percent) were the next most-critical factors impacting the e-discovery process.
Like other large companies, Cisco had outgrown its e-discovery tools and needed to better support its litigation profile and the pervasive trend of new devices coming into the workplace. The company's original e-discovery process was made up of disparate tools and systems, and it faced the need to handle a large volume of complex data. Daniel Black, Cisco's current director of legal services, was previously an independent consultant that was hired in 2009 to run the request-for-proposal process and was tasked with identifying a new e-discovery tool for Cisco.
“Cisco had established its ‘litigation lab’ but had outgrown the tools they were working with. They were using a mix of tools that were acquired over time and trying to piece together a complete solution. In addition to ever-increasing data volume and costs, Cisco started rolling out Macs, their BYOD program, and taking on an increasing number of foreign language cases,” Black explains. “While the existing program represented significant savings in collection and culling costs, they were still shipping data off to hosting vendors and outside counsel to complete the final review and production of documents, which from my perspective, no longer made sense.”
At least half of Cisco's litigation profile consists of patent litigation, with commercial litigation (30 percent) and internal investigations (20 percent) making up the other half, Black says. The group needed to support a wide range of users including inside and outside counsel.
When it came down to considering specific technologies and processes, Black interviewed the litigation team, outside counsel and other key stakeholders to understand what was working well and what the most common pain points were. He then categorized that feedback and applied it to the decision-making process.
“I went out and researched everything that was available at that time and focused on tools that met Cisco's top level requirements: an installable product, one that sits behind the firewall with no volume limits on processing, that was scalable and had native support for an increasing variety of data types. On top of this, I felt it was important to recommend a solution that came with a built-in Plan B. To me, that really favored companies that also provided e-discovery hosting. This would give Cisco the ability to react quickly to new matters even if it had reached internal limits, and they could even hand off an existing matter without having to pay to convert it to another format or lose any of the work they had already done. It is always nice knowing that safety net is there even though—I’m knocking on wood now—we haven't had to use it yet,” he explains.
IP caseload drives overhaul
When it came time for rollout of the new e-discovery platform in 2010, Black says most of the challenges were logistical. These included securing the data center space, spec’ing out the new Cisco UCS servers and getting those servers online. While these milestones meant a delay in implementation, Black says there isn't much he would have changed about the process, one he says was very collaborative from the top down.
As Mark Chandler, general counsel of Cisco, explains, the company needed discovery tools that could handle massive amounts of information, deal with both structured and unstructured data, and handle global data-collection requirements. The rise in IP-based cases significantly influenced the company's need for more sophisticated technology.
“We have very little commercial and employment litigation. The rise in non-practicing entity patent litigation, however, had a great impact on Cisco,” says Chandler. “We went from three IP cases, all with competitors, to over 60 by 2011, and have about that number today. These cases typically include massive discovery requests.”
Litigation expense is the single greatest driver in Chandler's budget, making it imperative to find efficient ways to meet requirements, he says.
“Failure to do the job right can have catastrophic consequences in litigation, and more broadly affect the company's reputation for integrity,” Chandler continues.
After Cisco implemented and rolled out its new e-discovery platform, Black took it upon himself to report the data directly to Chandler, and does so about every six months. In 2014, Cisco processed 27 terabytes of data, compared with just 2 to 3 terabytes of data just five years earlier. According to Black's estimate, last year Cisco saved $21 million on the e-discovery side alone, in addition to gaining downstream efficiencies, and an improved attorney review process added benefits of Cisco's e-discovery rollout.
As outside counsel for Cisco for over 10 years before coming on board in July 2013, Eric Lamison, vice president of IP litigation and deputy general counsel, says he observed firsthand Cisco's determination to innovate in many areas related to legal services including e-discovery.
“Mark Chandler and Cisco's entire legal team have a proven track record of consistently finding ways to reduce inefficiencies and deliver improved outcomes in legal services, whether it's developing new contracting tools for use by Cisco's sales force, new types of retention agreements and financial models for working with outside counsel, or developing new approaches to e-discovery that leveraged the strength of Cisco's in-house capabilities,” says Lamison. “Cisco differentiated itself by building a first-class in-house litigation team led by Daniel Black that enhanced the efficiency and effectiveness of data searching and collection.”
The future is now
While there is neither a silver bullet nor a one-size-fits-all solution, it's clear that businesses across industries will benefit from improving their data processes and taking an ongoing approach to refining their e-discovery policies and procedures.
“For e-discovery, we are barely at the beginning of the era when computing power will let us sort vast bodies of information quickly and reliably,” Chandler says. “The very unpredictability of the direction of technology suggests that an open architecture, built on standard and upgradable interfaces, will be the key to future success and to getting maximum leverage from today's investments.”
While it may be difficult to accurately prognosticate what the future will bring, one of the biggest issues facing organizations like Cisco is not in as much volume, but rather the diversity of data that has to be handled, a challenge that will continue to plague businesses now and in the future.
“For a long time, it seems like the problem we faced in e-discovery was keeping up with the sheer volume of data generated by the explosion of email and electronic documents. While volume is still a challenge, it seems like the latest generation of tools combined with more reasonable limits on discovery have helped us catch up a bit,” Black says. “The biggest challenge we face now is the diversity of the data. We are working hard to develop support for the next generation of collaboration and social media platforms. In some cases, the challenges we face are from new Cisco products and our hope is that by solving these problems internally we can also solve them for our customers. I think the partnerships we’ve developed with other departments are a really important component to being prepared for the future. With a company the size of Cisco, a small team like mine can’t boil the ocean. Our strategy has to be focused on being as efficient as we can with the low-hanging fruit, the data sources we go to most often.”
As the e-discovery process becomes more of an in-house function across industries, Cisco has achieved other benefits in addition to efficiencies and cost-savings.
“The most significant change we’ve made was hiring a team of experienced professionals to bring the e-discovery staff in-house. By handling this process internally, we are providing knowledge management across cases,” Black explains. “Not only does this prevent our firms from having to reinvent the wheel for every new case, but it also helps us standardize our approach to discovery. I think our firms appreciate having a blueprint when they start on a new case.”
Meanwhile, Lamison says he expects Cisco and its in-house litigation lab team will continue to innovate in the area of e-discovery.
“Our team is well-situated to develop e-discovery tools that can be used and upgraded in a repeatable way to work across a variety of new and diverse technologies and applications,” he adds. “As Cisco strives to be the number one IT company, our ability to develop and implement winning e-discovery tools will continue to differentiate our company and legal teams.”