An In-House Counsel’s View of E-Discovery: Utopia Is Usually Wherever ESI Is Not

E-discovery is held in the same regard as all forms of the discovery process: It is expensive, time-consuming, and subject to gamesmanship, and it often yields little relevant information in comparison with the costs. Other than perhaps tracking time for the billable hour, no task for a lawyer is subject to more derision. However, most litigation matters will rise, and fall, based on success in the discovery process. It is important, so why not commiserate over this burden with your client, offer cost-effective and efficient solutions, and allow this shared experience to help foster a stronger and more effective attorney-client relationship?

To provide background and context for my musings, for commercial litigation matters at Southern California Edison Co. (SCE), we have an internal e-discovery team tasked with assisting in collecting electronically stored information (ESI) and devising strategies for the efficient culling of data. We also have in-house litigators who handle some matters without outside counsel, partner with outside counsel for others, and revert to a “traditional” in-house role of managing outside counsel for large-scale litigation. SCE has evolved its processes over the years and continues to do so, and feedback from outside counsel is key to such efforts.

Begin Early

It is important—especially in a new attorney-client relationship—that discussions regarding e-discovery begin at an early stage. Indeed, such discussions may occur before the execution of a retention agreement, whether during a lengthy request for proposal process or the negotiation of the engagement. During interviews for the retention of counsel, we expect outside counsel will be prepared to discuss e-discovery, both in marketing the firm’s capabilities and setting expectations for a budget. After timekeeper fees, e-discovery costs often represent the second-largest spend for a client in litigation. Because your client’s legal department is under pressure to control costs, address this area at the outset (along with other components of the likely legal spend and budget). The involvement (or lack thereof) of your client with tasks such as data collection and review will affect the budget for the matter.

Another reason for an early discussion regarding e-discovery is to set expectations. Any client is interested in learning the details of your proposed approach for a matter. We will ask about your e-discovery team, its experience in similar matters, and what platform you use, along with features and customizations you propose for the case.

The more you know about your client’s organization, policies, and procedures, the more likely you can craft an efficient path for the collection, review, and production of documents. Failing to conduct this initial due diligence can cause you to make erroneous assumptions about your client that could create inefficiencies and early barriers to a functional relationship. Early questions for this stage may include the following: Does your client have an individual or group tasked with handling e-discovery issues? Does your client have contracts with e-discovery vendors? If so, what is the anticipated workflow? Is the ESI subject to company policies or special conditions, such as data prohibited for use outside the United States?

Once you have answers to those basic questions, define the roles and responsibilities for you, the client, and (if applicable) your client’s vendor. We expect outside counsel may involve its e-discovery specialists or designate a timekeeper as the lead to work with the client on such issues. The goal must be clear definition of the roles and responsibilities for each step of the e-discovery process for the life of the matter. It is also good practice to designate a project manager responsible for overseeing the planning, execution, and monitoring of the process.

Outside counsel should offer flexibility and a willingness to work with the client’s law department and its vendors. For many substantial matters, gone are the days where the firm will dictate every aspect of the e-discovery process, with limited client oversight. Rather, the firm should strive to integrate with the other members of the “team,” whether it is made up of the client’s internal law personnel, its vendors, or both. To act otherwise risks disrupting the workflow, which your client will notice. It does not serve your firm well to develop a reputation for “not playing well with others.”

Developing the Plan

Once retained, it is good practice to hold an introductory or “kickoff” conference with the client and the vendor, to connect team members, discuss the matter background, and plan the workflow. I expect that the conference will aid in developing a written e-discovery plan that identifies roles, responsibilities, and upcoming deadlines. The key is to avoid any assumptions or confusion as to who will take on the many discrete tasks necessary to move through the e-discovery process.

To assist in developing the plan, prepare a list of questions to help you learn your role and your client’s expectations. Has your client issued a legal hold? If not, does your client have an internal procedure? What are the document retention or information governance policies? Does your client have policies and procedures for the collection of documents? If document collection is performed internally, is it handled by the law department, information technology team, or some other part of the organization? If the function is internal, does your client have experience with its employees defending the collection process? What software platforms does your client use? Has your client transitioned among different platforms at any time relevant to the litigation? What document review tool does the client use (either internally or via a vendor)? Does the firm have experience with that tool or will its team need training? What is the workflow for review, including inquiries on who will conduct the first pass and who will train the review team?

These questions should illuminate potential barriers for the collection of ESI for litigation. For instance, if your client is a heavily regulated company, you may find ESI housed differently across your client’s business units. Do not assume these inefficiencies are due to poor information management practices by your client. Siloed data may be due to ineptitude, such as a failure to adequately assimilate acquired entities into existing business units. Siloed data also could be a product of organizational culture or an intentional feature of a cybersecurity measure. Although we encourage our outside counsel to help identify areas for improvement across the business, you must also recognize that the rationale behind existing constraints may outweigh your recommendations for a single litigation matter. We expect litigation counsel to employ efficient ways to work within our framework, in that institutionalized logistical or regulatory issues may override counsel’s view of efficient or other “best” practices.

Besides identifying tasks and defining roles, the e-discovery plan should also include a communication protocol. The level of detail in a protocol may vary depending on the matter. However, the protocol should provide guidelines for the interactions among the e-discovery team, such as who will be copied on email communications regarding e-discovery matters; client-specific requirements, such as handling passwords for review tools or a prohibition on transferring client documents via email; and a schedule for meetings and a protocol for meeting summaries and tracking tasks discussed during meetings.

Once the final e-discovery plan is completed, all involved parties should review it and the client should approve it. It is important to periodically review the plan for accountability of all parties.

Set Expectations for Plan Refinement

Joe Louis once remarked regarding boxing strategy, “Everyone has a plan until they get hit.” As the litigation progresses, the plan may change or otherwise evolve, often dependent on the conduct of your adversary. From day one of plan implementation, set expectations that the plan will need to be refined through the course of litigation.

Marcus Aurelius once wrote, “Nothing has such power to broaden the mind as the ability to investigate systematically and truly all that comes under observation.” Implement a methodical approach in planning witness interviews, as far as whom you talk with, what you talk about, and how you organize the information collected before your retention and during your interviews. Ask your client for an organization chart and consider an “all hands” meeting with the key individuals within the organization.

Custodian interviews are often essential to identifying sources of ESI for a matter. SCE starts this process, often before retaining outside counsel, with a customizable template it provides to all custodians. We use that form as a starting point to identify repositories of ESI and for follow-up conversations with the custodians. This effort is focused on identifying what documents each custodian may have and other possible custodians to add to the legal hold. The emphasis at this stage is not on the discovery of facts to evaluate the merits of the case.

No matter when you are retained during the matter, leverage any information already collected from the custodians for their interviews as fact witnesses. The benefits are twofold. First, by not duplicating efforts, you will realize efficiencies and cost savings for your client. Second, you will not frustrate the witnesses. Because these interviews may be your first interaction with witnesses who will dedicate significant time over months (or even years) during the life of the matter, you should strive to avoid asking a witness to repeat information already provided to your client’s law department.

The ubiquitous depiction of ESI in an e-discovery workflow is a funnel, with the goal of moving in stages to winnow the universe of preserved data to produced documents and, finally, to key documents. We expect that firms will work with us to devise a strategy for the efficient culling of documents through filters by date, keyword, or other means. Identifying relevant keywords is often an iterative process, and your client may have insight as to certain basic terms to include or exclude as you compile a list. Although your firm may have considerable experience with document collection and review, your client likely has a greater familiarity with the types of documents collected for the litigation.

It may seem obvious, but taking the time to learn about how your client has handled a matter before your firm’s retention may allow you to avoid inefficiencies and a frustrated client. At SCE, many of our commercial contracts include provisions requiring informal dispute resolution, and often mediation, before entering arbitration or filing a court action. In some cases where we have engaged in the informal process without outside counsel, we conduct early case analysis by interviewing witnesses and conducting preliminary document review, using initial keywords subject to a keyword validation process. If we later retain outside counsel for a matter, we must leverage this prior work and expect outside counsel to address any gaps in the workflow to date.

Document Review

One of my first major projects as a young litigator was document review for a large bankruptcy matter. It was in the early days of e-discovery, which means the documents were scanned, the first-pass review was conducted by associates in offices across the United States, and we did not have fancy innovations such as “de-duping” or email threading. It was common to review the same memo or email dozens of times, a billing bonanza for the firms working on the matter. At the time, I was regaled with stories by partners of their experiences as associates, reviewing boxes full of paper in unair-conditioned warehouses, and trips to and from the review sites were uphill, in the snow, and so forth.

We are past the days when dozens of associates conducted a first-pass review of a sizable subset of all collected documents. Due to the sheer volume of data available for even moderately sized matters, we expect firms to strategize regarding the precise tools to employ for collected documents, rather than resorting to a blunt instrument such as mass review of all collected documents. If a firm recommends its attorneys conduct the entire review, it must substantiate a significant economic and strategic benefit for such an approach. I expect that the firm will help evaluate the gamut of options, from attorney review to vendors with advanced analytic and linguist resources, and even firms that use advanced processes and technology to review documents to find the “story in litigation.” A firm’s willingness to assess the available tools provides me with confidence that the firm is aligned with my aim to efficiently achieve the best outcome for the matter. If a firm is unwilling to explore the available options or to provide a strong basis for not doing so, it raises concerns about the firm’s interest in meeting our goals.

Most cases that involve more than a few documents will necessitate modern techniques, such as technology-assisted review (TAR). TAR refers broadly to review enhanced by active machine learning. The method and process of review will vary. As with many technology-driven resources, the ability of TAR to identify responsive documents effectively has been both overstated and understated. A client’s experience with TAR will dictate its view on its use on the matter. As with any tool, the skill of the user will affect the result. If not implemented correctly, it can cause inefficiencies and poor results. As is true of many processes, effectiveness with a TAR strategy is subject to George Fuechsel’s concept of “GIGO,” or garbage in, garbage out.

We expect outside counsel to work as part of the team in developing a TAR strategy tailored to the matter. When applicable, outside counsel should leverage its experience in other matters to demonstrate the potential return on investment or cost of inefficiency in pursuing one strategy over another. For instance, providing the client with your anonymized results from other matters employing the TAR strategy will help educate your client and provide a measure of assurance for your recommended approach. That a firm should be able to demonstrate the requisite knowledge and experience level to execute the strategy is a given. It should also show how the recommended approach resulted in positive results in other matters, whether financially or with outcome on the merits.

Improving Your Process

Organizations have goals, and often one goal will be some variation of “achieving continuous improvement.” Rather than focus on improving a complex organization in an all-inclusive way, continuous improvement usually focuses on the improvement of processes. In working with your client in litigation, you will be exposed to the organization’s process assets, which consist of relevant historical information, tools, and other resources. With an outsider’s perspective, outside counsel is in a unique position to provide sage advice to spur organizational improvement, both within the law department and in the organizational units that were part of the litigation.

Albert Einstein is credited with saying that “the definition of insanity is trying the same thing over and over again, but expecting a different result.” No one chooses to make a mistake, but learning from a mistake is not optional. My suggestion is that, no matter the outcome of a case, outside counsel should look for opportunities to provide feedback, whether during an informal post-matter discussion or as part of a “lessons learned” presentation. The recent experience of your matter should provide an indication as to which processes work and what needs refinement.

The feedback can address the matter at hand and any gaps or improvements counsel suggest to help the client with e-discovery in future litigation. I expect outside counsel to critique the law department and beyond when providing feedback. One benefit of being an in-house litigator is that it provides opportunities to take an active role in avoiding lawsuits and mitigating risk. A matter postmortem should evaluate not only the litigation at hand but also your client’s actions or omissions leading to and during the litigation. For instance, did a business practice create the smoking gun email for the other side? Did an aspect of the company’s document retention policy cause unforeseen consequences during the collecting of ESI? Is there an arbitration clause that needs to be altered or added to a pro forma agreement?

For e-discovery matters in a breach of contract case, evaluate the effectiveness of the dispute resolution provision. For instance, if the matter was subject to an arbitration provision, did any temporal deadlines or discovery restrictions create an asymmetrical burden for your client? If your client is a large organization that generates significant data and its usual counterparties are single-asset, special-purpose entities with few employees, a provision for limited written discovery may serve your client. Your client must evaluate whether any changes are justified—a decision that will likely turn on the typicality of the issues in the lawsuit.

We do not expect to attain perfection but must aim for progress. Early and open discussions regarding e-discovery matters will help you address client concerns, such as costs, while also avoiding inefficiencies due to erroneous assumptions by outside counsel. As valued partners, outside counsel can be indispensable in driving process improvements, directly with e-discovery and beyond. We can continue to strive for the e-discovery equivalent of Bali H’ai (whatever that may be).