Government E-discovery Professionals Collaborate to Address the Challenges of Small Staffs and Limited Technology Budgets

By Monica Bay

On June 10, at the historic National Press Club (two blocks from the White House) LexisNexis and The Cowen Group launched a year-long program designed to help e-discovery professionals at federal government agencies improve their workflow and accelerate their careers. The initiative will include 12 roundtables, workshops and “think tanks.”

The project kicked off with a spirited breakfast that included networking and a panel discussion featuring recently-retired U.S. District Court Magistrate Judge John Facciola, one of the most influential voices on the evolution of e-discovery. Panelists included Julie Hanna (associate general counsel, Fannie Mae), Harley “Bucky” Methfessel (senior counsel for information and technology, U.S. Department of Education), Jerry Languilles (information technology specialist at the Security and Exchange Commission) and Glenn Melcher (special counsel at the Consumer Financial Protection Bureau).

The discussion—which included intense interaction with the audience of about 30 attorneys, litigation support leaders, associate general counsel, IT, analysts, advisors, project managers, cybersecurity professionals and others—was candid, revealing and inspiring. The sheer fact that these professionals were in the room together evidenced both the problems and its potential cures. It became clear that just about every attendee was facing the same issues: isolation, limited resources and minimal if any training opportunities. Happily, the gathering also quickly identified two key antidotes: to work together to create “best practices” that could be shared among federal agencies, and to network, so that when leaders do encounter a bump they can reach out to colleagues for ideas and advice.

CHALLENGES

Frankly, it was stunning to hear the challenges these government technologists face. While e-discovery leaders in the private sector may feel they have limited resources, their technology, personnel and training options are a smorgasbord compared to the Spartan equipment, head counts, and training offered at most government agencies.

Sure, the Security and Exchange Commission’s e-discovery team is as large as many Am Law 50 firms, with more than 30 eDiscovery and litigation support professionals, but most federal agencies have less than five employees—and some have a single person at the helm.

“Smaller agencies can be snowed with data that overwhelms limited capacities,” observed Facciola in an interview after the event. “The quantum of information being made available to the government by those who deal with the government is staggering and threatens to bring the regulatory process to a halt.”

“The government simply cannot shop for third party providers with the ease and money that private entities have,” said Facciola. “Creativity in using what little the agency may have is the only hope.”

Isolation

Facciola and others emphasized the negative power of feeling alone in the e-discovery fox hole. “Isolation of federal agencies from each other in technology is dangerous,” he said. “It creates the risk of unfair and unequal behavior among the parties being regulated.”

“Government agencies unfortunately are not known for sharing information with either those regulated or other agencies who share regulatory requirements,” Facciola continued. “Yet, such sharing may be the only solution to strained budgets and increasing responsibilities. The sharing need not be sophisticated or arcane,” he said, and it can be as simple as a discussion of what has worked and what hasn’t.

Increased collaboration could also address a thorny problem, said Facciola: “The government simply cannot shop for third party providers with the ease and money that private entities have.”Creativity in using what little the agency may have is the only hope.

Training

According to The Cowen Group’s Q2 Critical Trends Survey, “the number one challenge facing eDiscovery leaders is education— training law firm partners and support professionals on eDiscovery best practices,” said David Cowen, president and managing director of The Cowen Group.

Creating “best practices” makes it easier for agency leaders to band together and train teams across agencies. That also can promulgate interaction between the agencies that can have deliciously unexpected consequences. For example, there is a subtle benefit if everybody using the same approach—it can make career advancement more accessible if candidates know that they will be able to step into a new gig with known processes.

Networking

The other obvious benefit of connecting with other federal employees is that it makes it possible—and easy—to turn to colleagues when struggling with an e-discovery issue. It’s good, old-fashioned networking. It’s always easier to pick up the phone or email someone you already know, than to cold-call a stranger.

Of course, it’s not just the federal government that can benefit from this approach. The map can work in corporate shop, non-profits and even in Big Law. But the time is definitely ripe for government.

Join us and retired U.S. District Court Magistrate Judge John Facciola on our first working group call August  19th at 1pm ET.

—Attorney Monica Bay is a special consultant to The Cowen Group. E-mail: mbay@cowengroup.com.