© Alex Ponce de Leon
Alex Ponce de Leon is a discovery counsel for Google Inc. He develops and implements innovative and efficient discovery strategies for a wide variety of litigation matters. His practice includes patent litigation, complex commercial litigation, trade secrets litigation, contract disputes, internal investigations, and employment matters. Alex shared with us some views on eDiscovery trends and confidentiality.
Leaders League. eDiscovery is generally considered as costly to manage. What measures has Google adopted or is adopting to reduce cost linked to eDiscovery?
A.P.de L. Discovery remains exceedingly expensive and challenging. It’s essential to address discovery costs while meeting our obligations. We take discovery very seriously and work hard to bring the right people, the right tools, and the right documents together. Automation helps, but it can only go so far. It requires good legal work and also working collaboratively with our opponents to address issues early. Litigation is an adversarial process, but attorneys still need to communicate effectively with their opponents to meet the obligations without spending disproportionate amounts of time, effort, and money. US litigation has been helped by the adoption of recent amendments to our Federal Rules of Civil Procedure. Every litigant should leverage these amendments and consider whether the materials being sought are reasonable, proportionate, and necessary for the claims and defenses of the case.
Leaders League. What are the most useful protective orders and mechanisms for defending corporate information in today's arbitrations?
A.P.de L. Arbitration is private, but it is not always automatically confidential. Every party needs a good protective order in place to safeguard the underlying sensitive materials. It’s important to consider how data will be transferred, how source code is protected, and how materials will be destroyed at the end of the arbitration. You should consider carefully which experts, in-house counsel, outside counsel, and executives get access to the documents. Ultimately arbitration is meant to resolve an immediate business dispute. It should not be a fishing expedition. The best time to ensure confidentiality is not during arbitration, but at the time you are drafting the controlling arbitration clause. If the subject matter is sufficiently complex, you should consider the need to bind third parties such as witnesses, experts, and consultants.
Leaders League. What are the best practices in dealing with the burden of data preservation that you can share with us?
A.P.de L. Data preservation in litigation is a massive issue that costs large companies hundreds of millions of dollars each year. The new amendments to the Federal Rules of Civil Procedure help you if you are in federal court. I think communicating early with an opponent about preservation issues can be effective. Storage is not free, that’s a myth. Large companies are handling massive amounts of data every day and they cannot keep it all just for the sake of a case. Some big data systems require constant maintenance and a litigation hold can require significant engineering time to implement. It’s necessary to collaborate and address those issues early in the case. Sometimes it’s the requesting party that will need to pay for those expensive endeavors.
Leaders League. You have had an extremely diverse working experience in different professions. What drives you to search for this diversity?
A.P.de L. I am fortunate to work at the intersection of technology and the law. Litigation has gotten incredibly complex over the past decade. My project management skills and my previous work experience has fortunately prepared me to litigate these large cases and address the technical and legal issues that accompany them. I think lawyers need increased technical proficiency to adequately advocate for their clients. Data types have exploded, information sources are everywhere, and business deals are getting done over a multiplicity of platforms. All these are important elements to the story and litigators need to master them to properly advocate for the clients.