Why Litigators Should Take E-Discovery Seriously

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Thomson Reuters: Down the Hall with Practical Law

Why Litigators Should Take E-Discovery Seriously

06/30/2017

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Intro: Welcome to Thomson Reuters: Down the Hall with Practical Law, the show that provides practical insights and expert know-how in trending legal issues. No legalese, just expertise, with you host, Craig Vaughn.

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Craig Vaughn: Welcome to Thomson Reuters: Down the Hall with Practical Law, the show that provides practical legal know-how to make lawyers lives easier. I am your host Craig Vaughn and I am thrilled to introduce Kelly Griffith, who is a Senior Legal Editor specializing in E-Discovery.

Kelly, could you introduce yourself.

Kelly Griffith: Hi Craig. As you said, my name is Kelly Griffith. I am a Senior Legal Editor with Practical Law Litigation Service. I have been with Practical Law just over a year now, almost 16 months. Before that, I was a general litigator, a civil defense lawyer with a midsize firm base in West Virginia.

Craig Vaughn: Great. And so Kelly, discovery in general can be long, expensive, you kind of have to dig through a lot of small talk. Kind of reminds me of like kind of a bad first date kind of. So how did you get into E-Discovery specifically?

Kelly Griffith: Yeah, I think I was a little bit of an anomaly amongst litigators, in my firm at least. Discovery generally, and I think it was only exacerbated by the development of E-Discovery as its own sort of niche area within discovery, but it’s not something that appeals to many litigators. I found in my experience that most litigators are drawn to that type of a practice because they enjoy the strategizing and advocacy elements of litigation, whereas discovery, and as I said particularly E-Discovery seems more of like a technical administrative distraction, and as you suggested, a very time-consuming and expensive distraction at that.

So it’s not something that very many folks were sort of raising their hand to take on. I saw it candidly as sort of an opportunity within my firm to sort of develop some expertise within the litigation department and be an internal resource for all things E-Discovery.

So that was sort of what caught my eye initially was as a professional opportunity, but it also really just — the structure of the organization, the project management type aspects of E-Discovery kind of appealed to me.

And also I think seeing the bigger picture, seeing how this sort of more technical, administrative aspect of litigation really does go hand in hand with developing and implementing a strong theme and a strong litigation strategy and being the best advocate you can be for your client.

So if you properly leverage these technologies, then you really can efficiently find information that helps you with the fun part, that helps you when you are in a hearing, when you are taking a deposition, when you are at trial. So it’s not just a distraction, it’s not just an obstacle, it’s not just something the rules require you to do; it really can be a strong building block, like I said with the fun parts of litigation and what appeals to most litigators.

Craig Vaughn: Thanks a lot for that Kelly. You mentioned that the technology part might have some of the appeal. I can imagine, going back to your point about how certain litigators, they want to go stand in front of the judge and wave some sort of wonderful silver bullet that they have found via discovery. Case dismissed. Everybody walks out of the courthouse with confetti falling from the sky. So they kind of get all the reward based on all of your hard work.

So speaking of technology, how has it changed your practice over the last few years?

Kelly Griffith: Yeah, I started practicing in 2004 and a lot has changed in the 13 years that have passed. E-Discovery certainly predated that. I don’t think it was a common term at that time, and even when I was in law school it certainly isn’t something that I was hearing about during my civil procedure course.

But some E-Discovery is old; databases, microfiche, just even your standard DVD, thumb drive, floppy disks, backup tapes, all of those types of data have existed long before we started talking about E-Discovery as its own discipline. So any kind of electronically stored information really falls under the umbrella of E-Discovery and some of it is old and some of it is new.

In the past 13 years, I think probably from just our civilian lives, social media is the one that pops out as having developed the most quickly and how that’s integrated into our daily lives, the way we communicate. That has sort of blossomed in that time it began and then has certainly changed and developed at an amazing pace.

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So keeping up with where are people communicating about their personal lives when that’s relevant to litigation, where are they having professional communications when it’s commercial litigation, all of those things are constantly evolving. So staying abreast of how folks are doing business and how they are communicating and handling transactions even in their daily personal lives. That’s something that’s become relevant, that probably wasn’t on a litigator’s mind, at least as much front of mind 15 years ago.

Craig Vaughn: It’s interesting, you mention social media, back in 2004, I think I had a MySpace account, like those things were popping up. I am not too sure if Facebook was around yet. Social media was very much kind of a person to person sort of vehicle for a long time. But that’s totally changed.

Just recently this year I was in the market to buy a new tent, like a really nice tent and I corresponded with a couple of companies via social media. So it evolved from this person to person thing, to this consumer to business, and even business to business sort of a vehicle.

Are you seeing more and more chats and messages coming up as things that you might want to try to discover?

Kelly Griffith: Absolutely. And that’s a really good point and question about how social media has transitioned from a more personal social networking type of a platform to, I mean it’s hard to imagine a business that doesn’t have some sort of social media presence at this point.

I mean you can easily conceive of even a case in which — a product defect case, and companies are constantly promoting their new products, existing products on a variety of social media platforms. So what representations were they making about this particular product when they were marketing it on Facebook or when they had it on Twitter or Snapchat or whatever they may be using to promote their products, all of that can become relevant even in a commercial case.

The other scenario where folks tend to sort of understand pretty easily how social media becomes relevant to so much litigation is the personal injury type of case. So when you have claim for pain and suffering as part of a personal injury case, then the defense counsel would often want to see how active is this plaintiff who is claiming that they have a debilitating injury as a result of the slip and fall.

If they are water skiing, posting a video or a photo of themselves water skiing on the weekend, at the same time they are asserting this claim that their quality of life is so significantly diminished because of an injury, then that can very obviously be relevant to the litigation. So those types of cases that are sort of ripe for social media discovery, more and more cases are falling into that bucket because of the expanding way the business world is using social media.

And another development beyond social media is what’s frequently called the Internet of Things and that is sort of the blanket phrase or categories to describe all of these devices that now have some sort of data recording component.

So Fitbit is sort of the easiest one to point to. We used to just take a walk and now we have a record of the walk; where we went, how long it took us, how many steps were involved, how much the elevation change was, our GPS coordinates at various times, how many calories we have run. I mean you can get all of that from what used to just be an undocumented walk around your neighborhood. So, all of this data that’s now being recorded and stored has the potential to be discoverable, depending on the nature of the litigation.

So if someone claims, if it’s a car accident case, what their Samsung refrigerator recorded about when water was dispensed from the door of the refrigerator probably doesn’t matter. But if the question is whether somebody was home or not at a certain time in a criminal case and your Samsung refrigerator has recorded some activity about the refrigerator’s use at a certain time, I mean, as crazy as it sounds, that could be meaningful.

So this onslaught of data recording appliances and devices in our lives are all creating information and maintaining information and storing it to various degrees, and depending on the nature of the litigation in which you are involved, it could end up being relevant and discoverable.

Craig Vaughn: Very interesting. You are painting a nice picture. I am imagining a Samsung refrigerator on the stand being asked questions in front of a jury. I don’t know how realistic that type of scenario could be.

Okay, so you have talked about how social media platforms have changed and even the devices that we use are going to start pulling in all sorts of information, whether it be visible information or meta information. So you always kind of have to keep on top of those sorts of things. What about the rules themselves, do they change frequently?

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Kelly Griffith: The rules in this area — the most frequently referenced rules in the E-Discovery world are the Federal Rules of Civil Procedure of course, and they have changed more often with respect to E-Discovery than I think for other issues.

I mean the process that is involved in rule amendments is elaborate, to say the least and it takes years, but I mean if you compare it to amendments that have happened or been implemented for the other reasons, to relate to things other than E-Discovery, it certainly is pretty frequent.

The 2006 amendments were sort of the first wave of major rule amendments that were designed to tweak the rules so that they specifically addressed electronically stored information. So prior to that and even after that a lot of the rules as written about discovery generally could have applied to electronic data, just as they did to hard copy documents or physical evidence. But the 2006 amendments really tried to address where the rules as written maybe didn’t apply to electronic data as easily. So that was the first effort.

And then in December of 2015 was really the second effort to address E-Discovery, electronically stored information a little more head on. So there are rules that some of them by their plain language apply only to electronically stored information, they don’t apply to hard copy documents or other physical evidence, and then there are some rules that apply equally to both.

The rules have evolved it seems like probably in the last — as to a lot of other industries or areas, but in terms of how quickly the procedure or rules typically changes, it actually is a pretty decent pace, when you look at how they have evolved to address E-Discovery.

And then, that’s just speaking to the federal rules and state rules really have varied. Some of the states are quick to pick up on the federal rule revisions and take those same revisions and incorporate them into their state rules, if their state rules track the federal rules.

Others have sort of tried their own thing and gone a different way. And then some are still just kind of sitting back waiting to see if this E-Discovery thing is really going to catch on.

So the states vary a little bit more, but the federal rules have — the Rules Committee and various judges and many, many practitioners are all kind of doing their best to try to keep the rules up and applicable to the technology as it develops.

Craig Vaughn: Awesome. Thank you so much for that. So obviously you are going to have great job security writing about this very dynamic area of law. How could a litigation generalist, somebody who doesn’t really specialize in E-Discovery, how could they best leverage the resources that you write about?

Kelly Griffith: I think this is something that a lot of litigators and firms are facing is, this does change so quickly and they do have a full-time job already, which is managing their caseload and just litigating it as they always have. So adding on this burden of becoming an E-Discovery expert is certainly pretty daunting and again may not even be something that appeals to them because of its sort of technical nature.

But one of the things we do is provide resources to folks to quickly get them up to speed. So our resources try to be very pointed to say this is what you actually need to know to complete this task or this is what this term means. E-Discovery terms I think sort of — when people start to kind of dip their toe into the water and accept that, okay, I have got to dive in a little bit and figure out this E-Discovery thing, there are certain terms you see flying around pretty regularly.

Metadata is like E-Discovery 101. People start using the term metadata. They may not fully understand what it means or how they can use it, or why they need it or if they need it, but you will start hearing folks throw around that term when they are just starting to familiarize themselves with the area.

But there’s a lot more than that, understanding what you really should be negotiating with your opposing counsel at a 26(f) conference for example. The rule outlines what you are supposed to talk about, but actually having enough of an understanding to have a meaningful negotiation and come out of that conference with a useable agreement, it takes some time. And so our resources try to kind of give you that primer and enough detail that you can, not just meet the requirements of the rule, but also come out of it with a really useful agreement or understanding or at least discussion of how you are going to handle E-Discovery in a case so that you are not spinning your wheels.

You are not wasting your client’s money. You are not wasting your own time doing more than you need to do, but you are also not taking risks. You are not taking shortcuts without appreciating what the pros and cons of a particular approach are.

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So our resources try to give you that background that you need to make the right decisions for your case, to know how to talk to a vendor. If you are going to use an E-Discovery vendor to help you preserve data or collect it or process it or review or produce it, any stage of the E-Discovery workflow, if you want to use a vendor for that, then we give you a very direct list of questions that says, this is what you need to know about your vendor and you need to know if they are capable of these tasks, how they handle data security, how they handle confidentiality, all of these things.

It’s really kind of cutting through maybe the background, the history, the policy of how E-Discovery has developed, which is interesting and it’s certainly valuable to know, but when you are in the middle of the case and you need to get something done or you have a 26(f) meeting next week, you really just need to know what do I need to know to complete this task. And so we kind of try to cut to that chase I guess and arm you with the information you need to handle those things effectively.

Craig Vaughn: I understand that these negotiations that you enter in with opposing counsel, I mean that can end up having a win-win situation, because clients on both sides want to spend as little amount of money as possible, and if you come up with a clear plan, again, you may both may be able to spend less time on things that might be subject to being discounted or even being written off. Do you find that clients in particular to E-Discovery or discovery in general try to push back on their firms?

Kelly Griffith: I certainly had that experience when I was practicing. It certainly depends on the client and how familiar they are with E-Discovery being a necessary part of litigation. If they have been through this before, then they sort of expect it.

But you also have many clients who, you may be the first lawyer to tell them we need to hire a vendor so that when we collect your email, we make sure x, y and z metadata is preserved and maintained and we are able to produce it later. So if you are the first lawyer who is telling a client that these expenses are necessary and inherent in the litigation, then you can certainly expect, we will say a little bit of hesitation, to put it delicately.

The best thing you can do, what I heard from clients most often and particularly clients who this was a little bit of unknown territory is, they wanted to be able to have some predictability in their cost. So the benefit of knowing what to expect was really a little bit better than getting the lowest cost. So they just wanted to have some predictability there.

So to the extent firms or lawyers are able to incorporate E-Discovery expenses into some sort of alternative fee arrangement or fixed fee, then I found that to be welcomed.

That being said, there’s upfront work that needs to be done if you are going to know what a reasonable fix fee may be. And so that involves tracking your E-Discovery spend and various types of cases, understanding about what it’s going to cost to preserve and collect from any particular custodian. And certainly there’s always a range. You can’t predict with certainty. But tracking your E-Discovery spend in cases really gives you a great foundation to come up with a fixed fee proposal for the next similar case that comes along, whether for that client or another. So I found that to be a helpful way to kind of breakthrough with a client who is a little hesitant about diving in.

And then on the other end, sometimes you will have clients who will say, oh, we will handle it. So we know, you need our email, you need our IM chat histories, you need this project file, you need this personnel file, we will handle it, we will just send it to you.

And so some clients may see handling it internally on their end, maybe with their IT department as a way to save a little bit of money. And that certainly can be the case and in some cases that is a completely acceptable way to do it. But the sort of conundrum for the lawyer, the outside counsel in that situation is, the lawyer is the one who is ultimately signing these discovery responses and making the representations to the court, so you just need to make sure that you understand how they are doing it and that they are doing it in a defensible way, and that they are maintaining the integrity of the data as they collect and copy and transfer it. So that can be a sticky situation as well between the lawyer and the client.

Craig Vaughn: Let me ask you this, earlier you were talking about the different stages of E-Discovery. Do you have a favorite stage?

Kelly Griffith: It’s going to make me sound ridiculous to have a favorite stage of E-Discovery, but the one that I think is probably least understood but really where I guess the magic happens is processing. I mentioned earlier sometimes you will hear folks start to throw around E-Discovery lingo as they dip their toe into the water, and processing is one of those E-Discovery terms that folks throw around and maybe don’t know what it means right away.

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It’s also a term that people can kind of use to mean different things, but basically it is the stage between collecting data and then when you actually have it in your document review platform and are ready to review it. Once you collect data from its original source, so whether that’s somebody’s inbox or a database or a backup tape or an archive or whatever, from a social media platform, a smartphone. So you have collected the data, and then you have all this data on a device or in the cloud or wherever it may be. Well, you have to get it into your review platform so that you can actually start searching it or sorting it or reviewing it, encoding it and producing it, or using it as your own exhibits.

So that middle ground of processing is what takes the sort of original native data and extracts from each file, information about that file. So from an email, an email may just be one file, but once you process it, you can then search for it by sender, by recipient, by the date or time it was sent, or whether there was a read receipt. If it has attachments, what the subject line was, the actual content of the email itself, and attachment name. So you can search by all of these things, sort that way so you can get all of your emails in chronological order or consolidate an email thread.

So if there’s an email conversation that’s been going back and forth for two weeks among a group of people, you can identify which emails belong to that same email thread or email string or conversation and group them together for review, which makes that obviously much easier to understand the context of the discussion.

So without processing you basically have loose files, and so processing lets you take those files, extract the helpful information about them, and then you can use those for sorting and searching.

There’s a lot else that can happen during processing; deduplication, when you remove duplicate files from a dataset; deNISTing, which is sort of taking out some of the, what most of us would kind of think of as trash files. I mean they don’t have content, they are not substantive. So they are on your computer, they help your programs run properly, they help you see files or use different software programs, but they don’t actually have substantive content and so rarely are relevant in litigation.

So there are a lot of different things you can do during processing. It’s going to depend on your processing tool and your vendor exactly what processing functions are available and how you are charged for them. So is it a charge that they include with the collection fee, or do you pay separately, and do you pay based on the volume of data or do you pay based on custodian? What kinds of file types can they handle during processing? What information are they able to extract from different types of files? So the information you can extract from an email message is different than the information you can extract from a Microsoft Excel file.

So all of these variables to processing can certainly make a difference to how useful it is to you. But it really is what allows you to leverage the benefits when you are in a review setting, when you are reviewing documents or you are wanting to produce documents.

I think processing is really what makes E-Discovery such an opportunity for litigators, and unfortunately, it’s also one of the least understood phases of the workflow. So that’s probably the one I try to share with people who are getting started and try to make sure they understand that early on.

Craig Vaughn: I don’t think that sounded ridiculous at all. Very, very well said. So it sounds like the pool that you play in is very wide, it’s very deep. Clearly you have all the answers in your head. As we briefly talked about, I could see how a law firm litigation generalist, they would need those answers. At 2 o’clock in the morning when they are shining a flashlight around the office looking for them, if they only had an online tool to get to what was in your head, that would be great, and it seems like in-house counsel also who would be producing all of this content, both from a market-driven, what social media platform are people using now, to the rules changing, to understanding very, very technical things, I can see how it would have a really mass appeal to a lot of our subscribers.

Well Kelly, thank you so much for giving us a Practical Down the Hall, hey Kelly, what do I really need to know type of conversation. I really appreciate your time.

Kelly Griffith: Great. Thanks so much Craig. It’s been a pleasure.

Craig Vaughn: And that brings us to the end of our show. I want to thank our guest Kelly Griffith, Senior Legal Editor at Practical Law. I would also like to thank our listeners for tuning in.

And if you liked what you heard, please rate us on iTunes. Until next time, I am Craig Vaughn. This has been another edition of Thomson Reuters: Down the Hall with Practical Law.

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