The Innovation of Litigation.

Ep. 001 – The Top E-Discovery Trends You Need to Know in 2019 (With Expert Chris Schultz)

Christopher M. Schultz

Executive Vice President and General Counsel of Level 2 Legal Solutions and Baylor Law LL.M. Brain Trust Expert

I recently had the opportunity to sit down with Chris Schultz, a leading expert in e-discovery in the nation. In this interview, I pick his brain about all things e-discovery, including: the top e-discovery strategies for in-house and outside counsel to control and predict costs, the biggest e-discovery mistakes to avoid, the best resources for e-discovery experts (old and new), and how future trends are changing the landscape of e-discovery. 

Interview

JOSHUA: Cost is a huge concern with litigation, and e-discovery is often a significant part of legal spend–what are you seeing attorneys do to better predict and manage e-discovery costs?

CHRIS: The review and analysis of e-discovery very often is the most significant part of legal spend short of trial itself, so attorneys do need to do a better job of managing those costs. I like to refer to it as a three-legged stool:

  1. Defensible data reduction
  2. Choosing the right team to do the legal review
  3. Picking the right deadlines

Of those three, defensible data reduction is the most important and there’s a lot we can do to reduce the data and documents that we need to review.

We need to do better in negotiating, whether it’s in a federal rule 26f conference or in a state court analog, we need to really get our heads wrapped around what the ESI protocol, the stipulation, and proposed order confirming all of that will look like, because the more we can do to put a framework around discovery of ESI will be handled in a case, the better all parties will be at predicting and managing the cost.

Definition: “defensible data reduction” refers to the EDRM process of identifying, preserving, and then collecting potentially relevant or responsive information. However, not all information needs to be reviewed for potential production. Attorneys need to consider if there are file types, or date ranges, or data sources that need to be preserved but not necessarily reviewed and produced?

Referenced: the EDRM model guides, checklists, and white papers.

Referenced: the Sedona Conference publications.

JOSHUA: What are some examples of the kind of questions outside counsel and inside counsel should be thinking about as they prepare for e-discovery?

CHRIS: We often refer to this as having a “litigation readiness plan.” What immediately comes to mind is the e-discovery lifecycle as laid out in the EDRM. There are key questions that have been reduced to checklists at each stage in the e-discovery lifecycle that both outside counsel and inside counsel need to think about as they identify, preserve, collect, process, review, and prepare to produce the data.

Referenced: the EDRM Litigation Readiness Plan.

Referenced: the Sedona Conference publications.

JOSHUA: What are some of the biggest mistakes to avoid during the e-discovery process?

CHRIS: There are a couple of ways that clients often make poor choices when it comes to e-discovery. The first is moving too quickly.

There’s always a desire to immediately jump in and start doing something, and that’s usually because opposing counsel is aggressive, or the deadlines are aggressive. It’s better to take a step back and do some planning. Let’s take a step back and take a look at the custodians and content creators, whether they be electronic or human. Let’s take another step back and take a look at the claims or the defenses that are in play in this piece of litigation or investigation and let that inform the plan going forward. Resist the urge to just jump in and start collecting and reviewing everything. That’s usually a recipe for inefficiency and spending a lot of money you don’t have to spend.

The other thing may be obvious, but that is a basic failure to document what is happening during the e-discovery process or e-discovery life cycle. As attorneys, we need to document everything. Often the motion practice is happening a year or more later, so imagine trying to come up with any kind of affidavit-quality precision trying to back into the custodians or the search terms or data limitations that occurred a year and a half ago—you’re just setting yourself up for difficulty if you aren’t carefully, in a workmanlike fashion, making those records in real time. It sounds basic, I know, but sometimes it’s those basics that can really trip us up.

JOSHUA: How are technologies like artificial intelligence and process automations improving e-discovery?

CHRIS: This is a hugely important question for those of us in the trenches who are doing e-discovery day to day. Back in the 80s and 90s when we were predominantly in the world of paper and we had legions of attorneys sitting in war rooms going through redwells of paper coming out of banker’s boxes, being able to treat documents consistently (whether from a responsiveness standpoint, or from the privilege protection standpoint making sure that duplicate or near-duplicate documents are fully withheld and redacted properly), that used to be a huge challenge. You might get it right 9/10 times, but the one time you miss it, you’re going to give your opponent that small opening to argue waiver for example, and back in that era, even if you don’t have a waiver situation, it’s hard to un-ring the bell, and you might give away some bit of trial strategy. That’s where a range of technology has allowed us to bring a level of service to clients that is really superior to those paper days.

The basic data limitations (see a defensible data reduction plan) are ways to use technology to slice and dice datasets to get to a winnowed or triaged set of data more quickly. File extensions, date restrictions, to and from conversation limiters, or a step beyond those basic technologies: duplicate or near-duplicate identification, email threading, you can see how it is immediately more efficient to allow review of the entire corpus of information in one fell swoop. Now we have things like document clustering, which allows us to bucket programmatically similar documents so that we can triage certain collections of documents over others and have different types of reviewers or different attorneys review different collections. We also have Technology Assisted Review, or TAR. In 1.0 of TAR, we could use documents as seed sets to teach the machine, and now in TAR 2.0 the systems are continuously learning, so as the review teams are coding documents as responsive or non-responsive or privileged or not-privileged, the system is learning how to treat those documents appropriately, but more importantly, consistently. These technological improvements have helped drive a level of client service, protection, and consistency that was very welcome in this industry.

JOSHUA: Are we to the point where people are realizing savings by adopting cutting-edge technologies, like artificial intelligence and process automations? With e-discovery being potentially such a costly part of litigation, why are some companies reluctant to adopt new technologies that promise to ultimately reduce the cost of e-discovery?

CHRIS: Yes, my read on that is that clients who are using some of the more bleeding edge technologies and are using them well, are very likely getting efficiencies and cost savings out of those technologies. As lawyers, I think we tend to be cautious by nature. We tend to sometimes be paranoid by natures. And sometimes we like to focus on the law and not the tech.

I think the times are changing as the new lawyers are coming up, but all of those things together tend to slow down the adoption of cutting-edge technologies. Now there is a good reason why lawyers would be slow to adopt these new technologies even if there are efficiencies and cost savings, and that would be that the technologies are not well tested or approved of by the courts. So not only do you need to convince your client they should perhaps spend a little more money up front to save quite a bit of money down the road, but sometimes you need to also educate and convince your opponent or the court about the propriety of what you’re doing.

Some judges, like Judge Peck (who is now retired) from the SDNY, have said there should be no further question that TAR is here to stay and is safe to use—doesn’t always mean that TAR is the right technology for a given client at a given time, but I think you’ll see these technologies continue to improve and get adopted as these very cautious and very paranoid attorneys get brought along.

Referenced: Judge Andrew J. Peck, the former federal magistrate judge for the United States District Court for the Southern District of New York. Now at DLA Piper.

JOSHUA: How has GDPR influenced e-discovery trends in 2018 and will it continue to be important in 2019? Is there other legislation here in the US or abroad that should be on the radar going into 2019?

CHRIS: GDPR is a big deal for those of us who are trying to harvest or collect data, including personal identifying information, coming out of Europe and the greater EU region. If you’re fortunate enough to have a corporate client that is multinational with a division in Germany, for example, not so much now because GDPR has received so much press, but there was a time where you had to educate clients that “I understand those are your servers, I understand that in the United States there is no expectation of privacy when one of your employees in say, Texas, is accessing the system—Europe is different.” Also, the definition of PII is different and exceedingly broad. It doesn’t resonate immediately with U.S. ears—even things like a person’s job title or where they may be located to perform their work may be considered protectable and confidential information.

I think that it’s still enough of a thicket, so we will still retain local counsel just to make sure we’re not going to do something wrong, especially since GDPR isn’t fully codified.

If you aren’t working in Europe, it may not affect you yet, but I say yet because there are similar cries for data protection and privacy regimes to come to the United States. To the extent that Europe is in the vanguard and to the extent that our lawmakers think that is a good path to follow, it could be that we are headed that way as well. Goodness knows if it will happen or how quickly, but that would really impact how we do e-discovery in the United States.

Referenced: PII means personally identifiable information.

JOSHUA: What about the French idea of “le droit à l’oubli,” or, “the right to be forgotten?” From a legal or e-discovery perspective, that seems like a nightmare, a huge headache?

CHRIS: Think about it from both a legal and a practical perspective—if you have a custodian that has relevant, responsive information to litigation or an investigation who happens to reside in Europe, and they invoke their rights to modify, change, or delete their ESI, you have to weigh the legal issues and decide if you are able to do that in a piece of US litigation, or would you be spoliating evidence if you accommodate that request. But also, even if the data isn’t responsive or probative to the litigation in the United States, how do we practically go about doing that—how do we locate where all of that data is stored and is it cost effective to remove it? The common law is strong enough and robust enough and lawyers are smart enough that we’ll figure these things out going forward, but if we were to implement GDPR like legislation in the US, these are the kinds we would have to try and figure out.

JOSHUA: What are the top strategies companies and attorneys can adopt in 2019 to be pro-active about e-discovery in future litigation?

CHRIS: I am a huge fan of The Checklist Manifesto by Atul Gawande. I think the number one thing and an attorney can do, whether they are new to e-discovery or whether they’ve been doing it for a while, is to get the checklist in order so that when it inevitably happens that you need to start collecting, processing, and reviewing documents as part of e-discovery. Have that checklist in place, don’t go fumbling for it, the best way to waste time and money is to do something on the quick when you’re already in the thick of it. Have your strategy in place. Second, especially if you are in-house counsel, you don’t have to become an expert on the technological state of the art in e-discovery, but you do need to know enough to be able to hold your outside counsel’s feet to the fire to make sure they are using proper technology and are bringing those efficiencies and cost savings to you. Increasingly, I believe that in-house counsel are becoming general contractors. They have to be knowledgeable to assemble the right, desperate team of professionals, which will include outside counsel, but also some kind of legal service provider that will help outside counsel with harvesting, processing, and reviewing the documents. So if you are in-house and you can start thinking that way and educate yourself that way—it takes knowledge, you can’t be completely reliant on those third-party professionals—you need to be able to give guidance, but you don’t need to be the expert yourself. Leave it to the experts but view yourself as a general contractor bringing together the right team.

Referenced: The Checklist Manifesto by Atul Gawande.

JOSHUA: As a shameless plug, these are the kinds of issues that we grapple with in Baylor Law’s Executive LL.M. in Litigation Management. In the first trimester, for example, we teach data analytics—and the goal isn’t to turn the attorneys into data analytics experts, but rather to teach the candidates enough so that they know the right questions to ask of the specialists.

JOSHUA: What have I not thought to ask you about?

CHRIS: Having done this for over 20 years, the thing I am increasingly very pleased to see is the range of allied professionals that are entering the e-discovery space. It used to be that you had a JD after your name and you were the discovery expert and people presumed you were also the e-discovery expert. I think we are now living in an age of specialization. We have seen allied professionals—para-professionals, project managers, and even procurement professionals at corporations not only dipping their toes into e-discovery, but really diving in and learning enough to become a competent manager, so that they can help drive quality for their organizations. I think that is a trend to watch in the e-discovery industry, the rise of allied professionals and the importance of project management skills that they bring to the industry. I have a feeling that’s a strong place to watch and is probably going to be a new career path for a lot of people.

Biography: Christopher M. Schultz

Schultz is an expert in discovery matters, with a particular focus on the risks and challenges facing attorneys in today’s complex legal landscape. He created and chaired one of the first full-service eDiscovery legal practice groups in the nation. As part of the faculty of the renowned Sedona Conference, Schultz has taught the legal and technical details of eDiscovery to hundreds.

Schultz leads engagement teams where he assists clients with a full range of electronic discovery and litigation readiness projects, provides expert testimony, and special discovery master services. Schultz frequently presents at continuing legal education and other seminars on the topic of eDiscovery and has over five years of collegiate teaching experience. Much of Schultz’ work centers on anticipating and advising clients on the challenges that arise in modern discovery practice to set his clients up to achieve their greatest success. Schultz is also an avid sportsman and chess player.

What are you keeping your eye on related to e-discovery? Let us know in the comments!

 

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