The Evolution of E-Discovery

Episode Notes

Transcript

Jim Reeder:

Hello everyone and welcome to Litigation Radio. I’m your host, Jim Reeder. I was a litigator for 40 years in Houston, Txas and just retired from a practice focused on antitrusts and commercial litigation in the Houston office of Jones Day. I love trying lawsuits, but I also love teaching and mentoring, and I’ve spent my entire career focused on helping young lawyers become great lawyers. On this show, we talk to the country’s top litigators, judges, in – house counsel and academics, anyone who has a good idea about topics that interest litigators, including best practices for developing careers, winning cases, getting more clients, and building a sustainable practice with particular emphasis on doing all that while staying well and happy. Be sure to subscribe to the podcast on your favorite podcasting app to make sure you never miss an episode. Litigation Radio is brought to you by the litigation section of the American Bar Association.

It’s where I make my home in the ABA, and I’m a huge proponent of the litigation section. This podcast is just one example of the dozens of resources the litigation section provides litigators of all practice areas to help become successful trial lawyers for our clients. Learn more and become a member at ambar.org/litigation. Today we’re going to delve into the ever-changing and sometimes daunting landscape of electronic discovery, what I call from paper to predictive coding. We’ll be talking to one of the country’s leading experts on e-discovery, Emerson Bretous with Sovereign Discovery. Additionally, you’re going to want to stay with us as we are also bringing you a quick tip from Lauren Williams who talks to us today about how to network at the ABA Annual Conference. But first, let’s get started on our topic today, e-discovery. Our guest, Emerson Bretous is a principle of sovereign discovery, where he brings over 30 years of experience in leveraging litigation technology to simplify e-discovery to some of the largest law firms and corporations in the world.

Emerson has a proven track record of success and his strategic thinking and custom client approach have positioned sovereign discovery as a trusted partner for law firms and corporations. Welcome, Emerson.

Emerson Bretous:

Thanks for having me, Jim.

Jim Reeder:

First off, Emerson, share with us a brief thumbnail of your career path. That’s where we’ll get started.

Emerson Bretous:

Thanks, Jim. I started my career way back in 1996. I had a big law firm shuttling boxes from here to there in these big windowless rooms. Kind of moved up as automation and ESI and e-discovery increased, started getting a computer and started moving data, not using boxes, but using computers and CDs and so on. That career in big law and in these big vendors kind of led me to start my own shop. And about three years ago, started Sovereign Discovery so that I could do what I’ve been learning my entire career, my whole life, my whole professional life, do that on my own and serve the clients who aren’t getting the level of service they need, the mid-market.

Jim Reeder:

Fantastic. Yeah. Okay, so that’s cool. I mean, that’s a niche, obviously. The big law firms, they have people on staff who are handling this kind of thing, which you did for them. So I take it your target is more mid-market kind of law firms and clients?

Emerson Bretous:

Yeah, precisely. The boutique firms, the mid-market client firm, five to a hundred lawyers who handle some of the same cases against big law and have the same e-discovery needs and are having a challenge getting the level of expertise in – house in order to manage it properly.

Jim Reeder:

Fantastic. Well, that’s good. Well, let’s turn to our topic, e-discovery. You’ve been doing this 30 years. I’ve been doing it longer. When I started practicing 40 years ago, we handled document discovery the way I suspect it had been handled for decades before. And a lot of listeners probably aren’t even aware that this is how we used to do it. And it’s not a kind of story about I had to walk through the snow for 40 miles to get to school, but it was different and it wasn’t that much fun. At that time, somebody or some group of bodies gathered all the papers that related to the case

And then they reviewed them manually, each document to determine if they were responsive to a discovery request and whether they might be confidential or privileged or whatever. They then put all those documents that were responsive and not privileged into boxes, maybe hundreds of boxes, and put those in a room without a window somewhere where the lawyers for the other side then could come and spend days, sometimes weeks reviewing them and identifying those documents that they wanted copied with a sticky. Then some firm came in and made Bates stamps. They actually had a little machine, right? A little stamp kind of thing that it was actually the Bates stamp that advanced sequentially. So you just stamped each page and a copy of all the marked documents were made. And that’s what we did back then. Was it like that when you started then like 10 years later or had there been some more modern developments?

Emerson Bretous:

So it was very similar, Jim, very similar. It’s funny how the legal profession doesn’t change that much until they have to, I think. So it was very paper-based. So Bates stamps were with every labels. So some increasing automation. So it was firm started getting computers. When I got there, my first firm just got computers, non-internet enabled computers. So people started storing data and started storing these images, but the goal was always to bring it back to paper when I started. So we had CD towers full of images, but we put it back to paper because we’re going to put a Bates stamp on it and send it off.

Jim Reeder:

Yeah. It was so inefficient. I mean, it was like –

Emerson Bretous:

It was crazy.

Jim Reeder:

Right. You got the paper document, you imaged it, right? You copied it essentially. Then you put a Bates stamp on it so that you could create a unique document that had a Bates stamp and then you produced a paper copy again. It was just nuts.

Emerson Bretous:

It was. And when we first got emails, the same thing happened. We would literally print emails and put

Jim Reeder:

It – Literally. Exactly. Exactly. Because nobody knew how to store that stuff, right?

Emerson Bretous:

Exactly. Exactly.

Jim Reeder:

All right. So when did we first start seeing the real impact, efficiency enhancing impact of technology on discovery?

Emerson Bretous:

So the leading firm started when office automation started. And so as computers got spread out in these organizations and marketing materials started exploding and memos started exploding and people who didn’t used to write memos started writing memos and keeping documents. So the bigger firms started, but then when emails came about is when nobody could ignore it. Emails created a volume that nobody could foresee. Every meeting, conversations didn’t happen anymore. Emails, everything was recorded. And so that was the big shift from a paper review to a screen-based review. That was the shift from when we got emails.

Jim Reeder:

So early 2000s, you think? Exactly, exactly. Right before

Emerson Bretous:

The Sundar conference, early 2000s. All

Jim Reeder:

Right. And so I can remember that time too. So emails and you started to have to come up with a way of capturing the emails and then storing electronically became a huge thing, right? All right, so here’s my chicken and egg questions. There seemed to be so many more sources of data and information today and the volume’s so much larger than it used to be. I assume that’s your observation as well. Yeah,

Emerson Bretous:

Absolutely.

Jim Reeder:

Absolutely. I guess that just came around naturally operationally with technology and that e-discovery tools, I guess, reacted to that.

Emerson Bretous:

Right. That’s exactly correct. And so over time, as you mentioned, we started storing data. And so people had CDs and when people started getting CDs and storing music, they used to store documents and ship documents. And that was a way to increase your storage capabilities on your hard drive. And so to the extent that we only had what your hard drive had on your computer, now we’ve got external data. And so that was another kind of big explosion. And now we have cloud data. And so you can imagine where at one time you were restricted to how much was on your phone and people would buy new phones to take more pictures. And now everything’s moved over to the cloud. And so each individual is just having more data because you have the ability to have more data.

Jim Reeder:

And every

Emerson Bretous:

Organization, that data has become cheaper to store. So every organization is just storing more and more of it.

Jim Reeder:

Which is good, right? The cost of storage. As a lawyer, you’d get a bill every month from some storage company that would… It was pretty excessive, frankly, for what it was doing, which is just storing stuff.

Lauren Williams:

Right.

Jim Reeder:

All right. So let’s talk about where we are today because people I think are very interested in the tools that are available today to make document discovery more efficient. We’ve got volume. Obviously we have different locations. We have different information associated with the data that is available as well. So talk us to us about the resources today that you’re seeing being used efficiently and effectively, particularly as you see the rise of AI and predictive coding and that type of thing.

Emerson Bretous:

Sure. It starts with candidly collecting this data because every custodian now has an ecosystem of multimedia data where it used to be just emails and documents. Guys, we have Zoom recordings. Since COVID, now we’ve got terabytes of Zoom recordings. We’ve got all this cloud data, we’ve got mobile data. And so the ability to collect that data is a challenge. And so we have tools that we no longer kind of inconvenience custodians. You don’t have to hand over your laptop, you don’t have to hand over your cell phone, which is a SIM. Nobody wants to hand over their cell phone for even hours, let alone a day. So we can do all that stuff remotely. And so that’s great. So we’re collecting it. And now we have, particularly with AI, but you have all manner of technology assisted review that helps us get through, separate the week from the chaff as I like to say.

So you’ve got, like you mentioned before, predictive coding, you’ve got advanced analytics, visualizations, dataizations. You’ve got AI that can cut what investigations that used to take hundreds and hundreds of man-hours down to just several minutes. AI is helping us detect patterns and large data sets that at one time take people and teams of lawyers maybe months to get through. AI is kind of a multi-headed hydraul. It’s both creating a lot of data on the user end and allowing us to get through data on the e-discovery end.

Jim Reeder:

All right. So let’s unpack some of that. I love obviously the ability to collect remotely is a huge, huge advancement as far as the distractive element of litigation in an organization. Custodians don’t want to have to deal with it. All right. Predictive coding. So what technically is predictive coding?

Emerson Bretous:

So technically predictive coding, and that used to be a catchall for anytime you use technology, but predictive coding is when you take a sample set of documents and you get humans to review that sample set. And then you get a computer to understand what the humans are saying and say, “Okay, well I think from the sample set that this group of documents are most likely relevant. This group of documents is not relevant. That’s essentially what predictive coding is.

Jim Reeder:

So you’re taking a sample set essentially and then the computer is extrapolating that to a larger set.

Emerson Bretous:

AI kind of went upstat and you can give AI essentially what you would give a human as a coding manual, a 30-page coding manual that you give a team of reviewers and give AI that much information. It will make determinations based on the document, not outside the document, which is important.

Jim Reeder:

So are we seeing, I guess we are, less and less human involvement, human review of the data and information that ultimately is being produced?

Emerson Bretous:

No, no, no, no, no, no. That’s a big sin. What we’re seeing is less humans looking at spam, less humans looking at whether the super obvious irrelevant documents.

Jim Reeder:

All right. So it’s instead of wasting their time reviewing stuff that’s non-responsive, that clearly is non-responsive, that’s clearly irrelevant, that’s clearly unrelated, the technology can whittle it down to the universe of stuff that people then need to review.

Emerson Bretous:

Exactly. That’s the goal of the technology. That’s the goal of AI is the volume is really unreasonable. Every person has millions of pages of documents, whether you realize it or not. It’s just a lot to go through. And what the technology has done, what the e-discovery kind of field has done generally is learned how to separate the spam better than your spam filters in the emails because spam still gets through on spam filters. So it’s got to be better than the spam filter. But you got to get the lawyers the documents that matter and can’t have lawyers spending $1,000 an hour looking at Bloomingdale’s ads. You know what I mean?

Jim Reeder:

Right. And the identification, for instance, of search terms through that process, that is I spent considerable amount of time negotiating with the other side about search terms. That is all part of the initial process of whittling down the wheat from the chaff.

Emerson Bretous:

Yeah, exactly. Search terms are just part of the process. Now search terms used to be the entirety of the process. Search terms are now part of you use search terms, we predictive coding, we use AI and workflow is really what matters. We have to understand what we’re doing at every step and make sure that we’re not letting AI make too many decisions, for example, or letting predictive coding tell us that something is non-responsive when it is responsive when humans stop paying attention is when those mistakes start happening.

Jim Reeder:

Yes. Okay. So what is your observation about the reliability of AI or tech-assisted review, if you will, or productive coding, whatever we’re calling it, the reliability of that today versus four years ago?

Emerson Bretous:

Ah, that’s a good question. So I would not have used AI four years ago or even three years ago, two years ago. It just wasn’t as good as it is today. Predictive coding, however, has been really good for about 10 years.

And so computers have been really good at taking a sample set, maybe a thousand documents of what humans are saying about a sample set of documents and then extrapolating that forward, extrapolating that forward to a very similar document set. You can imagine how a computer could be good at that. For AI now, we’re explaining to AI. It’s almost like you have to talk to a person. Everybody who’s using ChatGPT or Claude knows you can kind of relate to it as a person, but you can explain all the parameters. Stay inside of the document. Don’t consider anything outside this document. But inside this document, tell me based on this 30-page coding manual, does this fit the bill or does not fit the bill? It is very reliable at that. It does not make mistakes. You can give it a list of a hundred names. If one of these hundred names in this document, find it and flag it.

It’s very reliable for things like that.

Jim Reeder:

And are the parties at a point, I know that they’re much more at a point today than they were 10 years ago when predictive coding just started at accepting that versus obviously the old manual review. But I take it that parties and courts are very comfortable today with predictive coding and are becoming more and more comfortable with when you tell them, you know what? We’re going to use AI for the purpose of this initial identification. Yes?

Emerson Bretous:

No absolutely. What matters to courts in particular is the workflow. If you can validate your process, if it’s defensible, then the other side, there’s just kind of no argument. And so as part of the ESR protocols we’re doing now, part of the initial conference, are we going to use AI? If you are, let’s discuss it. To what extent do we need to get down to validation or are you just going to use it to separate spin? And if you’re going to use predictive coding after that, we talk about that. So for the bigger cases, that part of the conversation can be kind of granular.

Jim Reeder:

All right, so that’s a great place to take a little break. We’ll be back shortly with our guest, Emerson Brattu, as we get into what the future looks like for e-discovery. And remember to stay tuned for our quick tip from Lauren Williams on how to network at the ABA Annual Conference. But now a quick word from our sponsors. We’re back with Emerson Bratu, the principle of sovereign discovery in Washington DC. All right, Emerson, look into your crystal ball and tell us what we can look forward to as far as tools for e-discovery are concerned. I mean, it may just be that it’s just getting better and better and we’re fine-tuning it, but it may be that you see something more on the future. And sometimes it’s difficult, I know, to look in the future, but what do you see?

Emerson Bretous:

On the one hand, I think I see, like you said, tools will just get better and better. There will be more tools that allow lawyers to make better decisions faster. But I think what’s going to happen is organizations on the organization and information governance side, they will start taking a more firm hand on managing how much data is being created out of their enterprises and is managing how much data can be discoverable because just the amount of data that their organizations are now producing and people who are using AI are producing much larger and much more rich content. Organizations are losing control of it. And that I think is going to be the biggest thing that gets harnessed in the next five… And that might be most colored glasses, but I think organizations have no choice. They want to manage these costs, but they have to manage the amount of data that’s going out.

Jim Reeder:

I love talking about that because it really has been sort of on the end of the litigators to try to harness and respond to. And this was kind of the chicken egg question I asked earlier and kind of respond to what the corporations and the clients were doing with regard to data. But it does make sense that managing data and what they store and what they keep also should be effectively approached with AI. For instance, we know that certain things that are created in the everyday workforce are not ever going to be important or related to a dispute perhaps. I mean, if we can do that, that’s great. If we can apply sensible retention policies with regard to certain kinds of data, that should be a world that gets explored. And of course, courts are going to have to be okay with that too, right?

I mean they’re going –

Emerson Bretous:

Well, they are. I mean, plenty of organizations are managing the information governance now and there’s data retention policies. Certain industries have to keep data for certain amounts of years. But organizations are otherwise purging email data, for example. They’re purging Zoom recordings that they don’t need after a certain amount of time. And it’s just smarter because if you do litigate and if you’ve gotten those bills a couple of times and you just talk to your lawyer and say, “Hey, how can I get these? This is costing too much.” Your lawyer will tell you, by the way, they need to reduce how much data’s coming out.

Jim Reeder:

Yeah, exactly. So yeah, they don’t want to hear that. But we need to get out in front of it, right?

Emerson Bretous:

You asking your lawyers to look at all this data. Give them less to look at.

Jim Reeder:

I love that answer because that leads to my last question, which is cost, which has been the great concern. The days when we used to have to, of course, pay somebody to keep thousands of boxes of data, then we had to have CD towers that kept the data. Now we’ve got cloud storage, et cetera. Are the costs associated with discovery, are they going down? Are they going up? And if they’re not going down, is that just a function of the fact that the volume just is increasing?

Emerson Bretous:

Yeah, they’re not going down, unfortunately. And like you said, the volume is just increasing. The cloud based, everybody’s phone is now on the cloud and everybody’s computers. We just had unlimited ability to store data. After COVID we had Zoos and now AI has created more data. And so while the unit costs are coming down, the amount of information is just increasing. It’s faster. It’s candidly increasing faster than unit costs can come down.

Jim Reeder:

Right. And the human costs though I gather has been reduced, that is paying for associates or humans and paying that hourly rate. So it’d be interesting to see what the analysis is, the balance there. But I love this to end our discussion right now on this notion that, okay, the litigation support people, the law firms are doing everything they can to utilize technology to keep up. The place where we’re going to find some future efficiency and economy is in the actual storage and creation of the data at the client end at the outset. Cool. Fantastic insight. Thanks, Emerson. Clearly this is an area that is ever changing and you are on top of it. So feel free to come back anytime to share any new developments.

Emerson Bretous:

Appreciate it, Jim.

Jim Reeder:

And now it’s time for a quick tip from the ABA litigation section. I’m pleased to welcome back Lauren Williams. Lauren practices corporate law at Morgan Stanley in Columbia, South Carolina. Welcome, Lauren. What’s your quick tip?

Lauren Williams:

Today we are going to talk about something that makes some lawyers very excited and makes others want to fake a sudden illness and order room service for three days straight. And that is Networking at Annual Meeting. Yes, you actually need to leave your hotel room. As you know, ABA Annual Meeting is coming up and this is a perfect time to talk about some networking. Now let me say this. Networking does not mean walking into a reception pretending to be something that you’re not. It does not mean you’re aggressively handing out business cards like you’re trying to pass out mix tapes and trying to make it in life. No, it definitely does not mean standing awkwardly by the cheese tray praying somebody adopts you into their conversation circle. And we have all been there. Annual meeting can feel intimidating, especially for first time attendees or young lawyers who don’t already know half the room.

You’re going to see people hugging in hallways, making dinner plans, talking about leadership positions, appointments, referrals, opportunities. Meanwhile, you’re trying to remember if your badge is upside down or if your tie is straight. But here’s the truth, networking is one of the most important things that you can do for your legal career. Most opportunities in this profession comes through relationships like that can be your job, that can be a fellowship. It’s not going to just be based off your resume, your grades, or where you work. That does matter, but relationships matter more. The legal profession is built on trust and familiarity. People want to work with lawyers they know, lawyers they talk to, lawyers they like, and lawyers they’ve seen show up consistently. Annual meeting gives young lawyers access to rooms and conversations that they may not normally have access to. You get to meet judges, law firm leaders, in – house counsel, bar leaders, referral sources, mentors, future friends, and sometimes future employers all in one weekend.

That is super powerful. And let me also say that networking is not just about what somebody can do for you immediately. Please do not walk around sounding like a LinkedIn message in human form. People can feel transactional and inauthentic energy instantly. The best networking happens when you are genuinely curious about people. Ask questions, listen, be engaged and be memorable in a positive way. Honestly, some of the best connections happen in the most random places. The coffee line, the elevator, I am a witness to that. Walking between meetings, sitting next to somebody at lunch because all the other seats were taken. One conversation can literally shift your career trajectory. And let’s also normalize this. Networking is awkward for almost everybody. Even the people who look confident, half the profession is walking around pretending they know where the next meeting room is. Nobody knows where Regency Ballroom C is.

Nobody. We’re going to be asking where we should head for the next CLE or for the next program. You’re going to get lost. You will accidentally walk into the wrong meeting at least once. And yes, there is always one person speed walking through the lobby like they’re late for their oral argument before the Supreme Court. Just embrace it. But here’s my practical advice for young lawyers attending annual meeting. First, do not spend the entire conference with the same three people you came with. I know it’s safe. I know it’s comfortable, but growth happens when you introduce yourself to new people. Second, go to the receptions even if you can only stay for 30 minutes. So many young lawyers skip networking events because they feel nervous and then later they say, “Well, I didn’t meet anybody.” You have to actually leave the hotel room. The opportunities are not going to personally knock on your Marriott door.

Third, follow up afterwards. Networking is not collecting business cards and then never speaking again. Send a LinkedIn request, send the email, reach back out. Relationships require maintenance. And finally, remember that you belong in these spaces too. So many young lawyers walk into annual meeting feeling like everybody else is more accomplished, more connected and more important. But the reality is every established leader in this profession was once the nervous young lawyer standing alone at a reception wondering if they should grab another mini crab cake to avoid making eye contact. Every single one. So introduce yourself, take up space, be professional, be warm and be authentic because your next mentor, referral source, leadership opportunity, or lifelong friend could truly begin with one conversation at annual meeting. And to let you in on a little secret, one of mine’s actually happened at midyear meeting, so this is true.

And trust me, future you will be grateful that present you’ve decided to leave the room and go downstairs. Thanks for tuning into Young Lawyer Tips and I’ll see you at annual meeting.

Jim Reeder:

Thanks, Lauren, for another great quick tip and our special thanks to our guest, Emerson Bratub, principal of Sovereign Discovery in Washington DC. A reminder to be sure and subscribe to Litigation Radio on your favorite podcasting app so you don’t miss our next episode. And spread the word. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social media and invite others to join the show and community. If you want to leave a review over at Apple Podcasts, it’s incredibly helpful. Even a quick rating over at Spotify podcasts is super helpful. Finally, I want to quickly thank some folks who make this show possible. Thanks to Michelle Oberts, who is the producer on staff with the litigation section. Thanks also go out to the co-chairs of the litigation section’s audio content committee, Hailey Maple and Mike Stager.

And thank you to the audio professionals from Legal Talk Network. And last but not least, thanks to you for listening. I’m Jim Reeder and I’ll talk to you later.

Continue Reading