By Mary Mack
Greg Bufithis, founder and semi-retired Chairman of the Board of the Posse List, Project Counsel Media and a couple of other ventures, focused his laser eye on our eDiscovery market conditions in light of COVID-19. 
His post today highlighted practice areas with eDiscovery volume that will soon be blooming. Each of them require specific experience not apparent to those who have yet to experience a full lifecycle. I offer some thoughts on getting ready for these opportunities in italics.
Bankruptcy
Within a quarter, Bufithis and his experts predict a wave of filings of corporate Chapter 7 and Chapter 11 cases with significant eDiscovery.
Phones are ringing for bankruptcy lawyers across the country. Everybody’s fighting for the work. These cases bring whopping legal fees for law firms that win the representation of the bankrupt companies: pre-filing and all the work in bankruptcy courts. And the large cases involve a boatload of e-discovery work. So the restructuring world has gained big time status in hundreds of Am Law firms as scores of corporate lawyers are repurposed to assist debtor-side bankruptcy partners, and restructuring-type practices gain injections of new life.
Bankruptcy eDiscovery practice is not for the faint of heart: personnel, like an email or network administrator, may not be available for identification and collection. Passwords and encryption keys will be scarce, and there may be closets of abandoned equipment at best, and missing ESI at the worst.
In addition to an initial sale to an entity in Chapter 11, the Trustee needs to approve changes in scope. That said, once the Trustee approves, your payment is all but guaranteed.
Finding yourself with a client who enters into a bankruptcy after the fact can complicate cash flow with earlier invoices being delayed or wiped away.
Business interruption
Litigating contracts with force majeure clauses will be multi-layered according to Bufithis, with insurance counsel bracing for “litigation profiteering” and Wall Street and Main Street lobbying for retroactive changes to coverage that may need to be publicly funded. Noting that the 50 states regulate their insurance industries independently, and the trillions at stake, Bufithis asserts that insurers are preparing a “defense in depth.” Using contract analytic tools, some of which are based on eDiscovery technology, the attorneys are scouring tranches of contracts for troublesome clauses and policy endorsements.
eDiscovery technology allowing multiple teams to review and redact, and the ability to produce the same data with different load files, confidentiality markings, redactions and BATES will have an advantage. Project managers and consultants who can work with collaborating competitors (law firms, experts, providers) will be at a premium. eDiscovery counsel may operate at the national and international level, with local counsel doing the litigating, creating a need for trainers and technical writers to support the local counsel.
Labor and Employment
Labor and employment is predicted to be a strong practice area:
…contractual issues, collective bargaining issues, and whether the manner in which such layoffs or furloughs have occurred is consistent with other contractual obligations. Also, employee safety issues….
Time tracking, whistleblowing hotlines, video cameras, digital thermometers, wearables, social media will offer challenging data formats for collection, review and production.
Health Care and Pharmaceuticals
Health and pharma will be hit by litigation including working conditions, negligence, gross negligence, medical malpractice, HIPAA, class actions and mass torts around approved and unapproved drugs.
New providers will be shocked by the necessity for trusted systems to connect to pharma systems for collection and the hodgepodge of systems in the medical field. Hospitals, clinics, doctors offices and insurance companies will spawn 3rd party subpoenas and puzzle pieces of evidence. eDiscovery providers experienced with Epic and Cerner, medical record companies with a combined 50% of hospital market share, will be in high demand.
Product Liability
Bufithis interviewed McKinsey legal industry analyst, Chris Spears, who believes that, among other areas, there is “[p]otential product liability in industries with heavily impacted supply chains such as auto, semiconductors, and retail.”
Conflict checking will be critical when addressing supply chain litigation. Taking on a small player can impact future business, just as landing a client who prefers to delay. Understanding the litigation landscape of the entire chain will be critical for pursuit teams.
With the layoffs and furloughs all throughout the eDiscovery community, Bufithis provides a coherent roadmap for short and long term focus.
