Gordon Calhoun Interviewed By Lighthouse On Consequences of E-Discovery Hesitance

San Francisco, Calif. (September 15, 2021) - San Francisco Partner Gordon J. Calhoun was recently interviewed by Lighthouse, an e-discovery service provider, for a two-part series titled “Overcoming eDiscovery Trepidation.” The series, which was republished in JD Supra, discusses attorneys’ common concerns related to e-discovery and the potential consequences of avoiding the practice. Part I, titled, “The Challenge,” addresses the history of e-discovery, including how avoiding it entirely may negatively impact clients. Part II, titled “A Better Outcome,” discusses how attorneys can use e-discovery to achieve positive litigation outcomes and obtain repeat business.

Part I of the series opens with a brief history of e-discovery and an acknowledgment that even after two decades of exposure to the practice, lawyers still experience angst around e-discovery. On this issue, Mr. Calhoun told Lighthouse that many attorneys simply believe that technology is a problem in discovery, not the solution. He explained, “It’s not about the technology, it is about the fear of the technology, the fear of not being able to use it as effectively as competitors, and the fear of incurring unnecessary costs while blowing budgets and alienating clients.” Mr. Calhoun further noted that the attorneys who ignore electronic evidence because they find it too difficult to manage fail to provide clients with the “just result” that Rule 1 of the Federal Rules of Civil Procedure requires.

In addition, Mr. Calhoun pointed out that when lawyers choose to work with paper documents as opposed to employing e-discovery methods, “it will immediately impose on clients the cost of inefficient litigation” by, for example, paying several individuals to review documents over several days and manually preparing a privilege log. In describing how this cost of inefficiency could lead to losing clients, he described, “Ultimately, when the clients recognize that their counsel’s fear of ediscovery is imposing a cost on them, that attorney will lose the client.”

In Part II of the series, Mr. Calhoun provided a further explanation concerning the benefits of e-discovery, noting that “attorneys who are informed enough to use technology to save clients money on multiple cases are going to earn the trust and confidence of more and more clients.” He also described how attorneys can overcome their fear of expenses associated with e-discovery, explaining that the “challenge can be met by research, planning, and negotiation.” He told Lighthouse that various “pricing models exist and there is no reason they cannot be scaled for users with smaller demands.”

Finally, Mr. Calhoun discussed the notion of “proportionality” as “the solution to the conundrum as to how to manage an overly broad discovery request with a limited budget.” He advised that an “experienced attorney” should participate in the meet and confer process to create the “guard rails” for discovery. Following the establishment of these parameters, “[a]ttorneys should continue to budget proportionally throughout the case,” Mr. Calhoun said. In providing his concluding thoughts on e-discovery, Mr. Calhoun advised that “in 2021, no attorney should fear responding to ediscovery requests.”

Mr. Calhoun is the chair of Lewis Brisbois' Electronic Discovery, Information Management & Compliance Practice, and specializes in representing business entities in a variety of complex, high exposure matters that often involve large volumes of paper and electronically-stored information. He also regularly counsels clients on a broad variety of business, regulatory, and risk and information management protocols, including data breach responses and compliance practices.

You can read Part I of the Lighthouse series on JD Supra here and Part II here.

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