“Evolving Best Practices for Budgeting and Spending Proposals for E-Discovery Technology” was the topic of the fourth LexisNexis Federal eDiscovery Think Tank event, led by David Cowen, President and Managing Director of The Cowen Group.

The Think Tank was launched in June to help government professionals in eDiscovery share their challenges and successes, with the goal of building alliances and identifying best practices. Participants include federal, state and regional governmental professionals.

Panelists at the October 28 Virtual Workshop included:
Daniel Ellenbogen, Senior Attorney, Office of  Inspector General at the U.S. Postal Service. Based in Silver Spring, Maryland, he has been with the USPS for more than 16 years.

• John Facciola, recently retired United States Magistrate Judge (District of Columbia).

• Anthony Lowe, Director at the Federal Home Loan Mortgage Corp. (aka Freddie Mac). Freddie Mac is a public government-sponsored enterprise, headquartered at Tyson’s Corner (Fairfax, Va.). It was created in 1970 to expand the secondary market for mortgages in the U.S.

(Note: Participants stated that their opinions are their own, and do not necessarily reflect their agencies’ official views.)

The main theme of the hour-long event was the perplexing challenges that most federal professionals face when trying to keep up with eDiscovery technology. The situation is often worse for those working in state and local government, participants noted.

While most government agencies, like most organizations, have basic technology such as Microsoft Office or Google options, tool chests for litigation are another story. Not only are most government technology budgets miniscule (if existent), the process of getting a budget for technology—and then selecting the technology—can be excruciatingly slow. So much so, that by the time the purchase is approved, the technology often has been replaced with the next version.

Making things worse, government budgets are currently static for three years or more, while technology advances (and prices) skyrocket each year, speakers observed. That hits hard, making it even more difficult for government litigators to stay current, especially when corporate adversaries often have rich pockets and easily absorb new iterations.

While Microsoft’s acquisition of Equivio, which provides machine learning tools for eDiscovery and information governance, may change the arena in some ways, it’s unlikely that’s impact will be dramatic, speakers noted.

DUST TO DIAMONDS

The good news is that these government professionals must have magic in their genes, because they have figured out clever and pragmatic ways to create diamonds from dust. It starts with understanding your unit’s limitations, and turning to your peers internally and externally, they say.

Realistically, at least for the near future, governmental agencies will have tight budgets, and to purchase new e-discovery you may have to outset something else,” said Lowe.

“I pretty much manage our eDiscovery process, which includes trying to address the technology that we are going to use to bring our office into a modern age —cobbling together bits and pieces,” explained Ellenbogen. “A good place to start is with your unit’s IT team—who may be able to coordinate with you. But don’t expect the ‘opening of a funding spigot,’” he cautioned.

Realize that other, more pressing budget issues will take priority, such as personnel, salaries, benefits and other infrastructure, like maintenance of facility and real estate, he cautioned. “We can’t control what we are going to need,” he said. “That makes it difficult to budget—treading water becomes your priority. Things get placed on hold because there is no money.” said Ellenbogen.

But sometimes surprises emerge. Ellenbogen advised agencies to go on a treasure hunt in closets with your IT colleagues—look for technology acquired in the past when the coffers were more full. You may find some unopened or underused technology that can be jerry-rigged for today’s needs.

Denver-based Kay McCarthy, Litigation Support Analyst at the U.S. Securities & Exchange Commission, echoed his suggestion to collaborate with IT. “The ultimate importance is the relationship with the IT professionals,” she said, noting that she doesn’t have a lot of technology influence because she is a regional professional. The Denver team laughs a lot about how its resourceful IT team is able to troubleshoot problems like “MacGyver.” The effort, she said, has improved interaction. Another success: the team considers standardization when considering spending on platforms, which “makes everyone’s life easier.”

YEAR END JACKPOT

Washington, D.C.-based Bucky Methfessel, Senior Counsel of Information at the U.S. Department of Education, said he spends “a lot of time cozying up to our CFO,” because as a “practical matter, there usually is money that can be swept up at the end of the year—but you have to have the requirements ready to go.”

Methfessel also collaborates with the Office of the Chief Information Officer. “This year we decided to put an agreement in place with the Department of Justice. We funded it with a minimum amount of money—but it can go up and down—and be able to expand and contract, which gives us access to their ‘mega-four’ contractors.”

JUDGES DILEMMA

Facciola bemoaned the current difficulty for judges to get the technology or training needed to effectively work their cases. “Is it appropriate to have one standard for the government and another for everybody else?” he asked.

Training for judges—to acquire knowledge about how technology works—is impossible if there is not money for training, he said. The lack of training guarantees a “huge gap,” he said. And adding insult to injury, judges often must refuse to accept donations of technology tools from vendors, due to the restrictions about gifts.

 

TAKEAWAY

We asked each panelist for their takeaway from the fast-paced discussion:

> Ellenbogen: “The demands on attorneys practicing in an eDiscovery environment make it crucial to have close effective working relationships with IT departments. The budgetary pressures on agencies these days create real challenges for attorneys in terms of knowing what information is out there to be collected, and identifying tools and processes for collecting and reviewing it.”

> Facciola: “The amendments to the Federal Rules of Civil Procedure will require utility to be measured against the breath of every discovery demand. The government will have to lead in that enterprise by emphasizing how financial limitations on the government must shape that inquiry.”

> Lowe: “It’s important for the federal sector to collaborate across agencies, opportunities to share resources and establish standards in this space.”

The next LexisNexis Federal eDiscovery Virtual Think Tank will be held on November 18, at 1 p.m. EDT. For information email Jennifer Schwartz. (jennifer@cowengroup.com).

Attorney Monica Bay is a special consultant to The Cowen Group.