Law firms examine pros and cons of e-discovery
Attorneys say most practices use Technology Assisted Review software to sort and search records during pretrial investigations, audits.
Varnum attorney Matt Anderson said the 1998 movie “A Civil Action,” starring John Travolta, illustrates how tedious the “slog” of discovery once was for attorneys, sorting through rooms full of paper to gather the facts of a case.
About 15 years ago, most law firms began to embrace the digital age, collecting and reviewing business records and other types of data electronically.
Now, it’s standard practice for attorneys, support staff and contractors to use predictive coding, or Technology Assisted Review (TAR) software, to sort through emails, metadata, electronic bookkeeping software and a plethora of other records.
Anderson, a Varnum litigator who does pretrial “discovery,” or information gathering, has been practicing law a year and a half at Varnum and five years total. He has not known a point in his career during which attorneys did not use electronic discovery, or e-discovery.
“E-discovery is the electronic part of the discovery process, where the sides exchange information, ask questions and produce documents, and now (it is) the main bulk of it,” he said. “Electronic discovery was around when I first started, but every year, you see more and more of it.
“When I first started, even though documents were electronically available, a party might choose to produce it on paper. But that’s rarer and rarer now as e-discovery systems become more sophisticated and people become more comfortable using them.”
Jay Yelton, a veteran attorney and co-chair of Warner Norcross & Judd’s Data Solutions Practice Group, said Warner Norcross has a team of 10 full-time attorneys and a 4,500-square-foot facility exclusively dedicated to e-discovery.
“A law firm has to make a decision,” he said. “Option 1 is they can outsource to an e-vendor. No. 2, they can train all paralegals and attorneys to be really good at it, or No. 3, a law firm can have a dedicated and specialized team to handle e-discovery.”
Since Warner Norcross is the largest law firm in West Michigan, with 175 attorneys, 139 support staff and 21 paralegals working in the region, it can afford to maintain the TAR software, data servers and employee labor to guide clients through e-discovery.
Yelton and Anderson agree e-discovery has pros and cons.
“It’s a blessing and a curse, because it’s much easier to search than it used to be than if you had to go by paper,” Anderson said. “But we store so much data now electronically that there’s much more to search.”
Anderson said it’s important for businesses to have a document retention policy, a set of written rules about which documents to keep. Yelton’s firm refers to it as information governance, or record management.
“If a company has a policy for business reasons that it deletes or archives emails after a certain amount of time, generally that’s OK; it’s its business decision,” Anderson said. “If a company anticipates litigation, it should hire an attorney to advise it on its retention policies going forward.”
Yelton said Warner Norcross has a four-pronged strategy for e-discovery: data analytics, best practices, appropriate staffing and budgets.
Data analytics has to do with choosing which TAR software package to use and training the employees to use it, including how to narrow the scope by eliminating data that is not relevant to a case.
Best practices involve policies for collecting, reviewing/analyzing and storing the data; Yelton said methods must be repeatable and defensible.
“We don’t reinvent the wheel each project; we use our consistent best practices and tailor them to each case,” he said. “When we’re done with the preservation, collection and review of big data, we’re likely to be challenged. We need to be able to defend that process.”
Deciding on appropriate staffing during e-discovery involves choosing whether attorneys, support staff, paralegals or contractors review the data, according to the scope of the case and the training needed.
Yelton said he thinks the most important part of e-discovery for Warner Norcross is setting the budget.
“We need to provide a budget estimate to our clients before we start the project, because e-discovery projects can really get out-of-control expensive,” he said. “The quantity of data in an organization is doubling every one and a half to two years. Where are you collecting it from? The main servers? Not only the quantity of data is growing, but so are the locations you can get it from.”
Anderson said the e-discovery process might shrink costs for the client in the best-case scenario.
“It’s more efficient to search for the important documents (electronically),” he said. “The flip side is because we have so much more electronic data available to us all the time, it can be costly for an attorney to do an internal review of the client’s documents before you turn them over, because nowadays, there are so many emails and everything is written down, even casual conversations between co-workers via email.”
Yelton said a federal statute enacted in 2015, commonly referred to as “proportionality,” governs the process of e-discovery in federal cases.
“(Under the statute), attorneys and the courts are supposed to keep proportionality in mind when they are evaluating e-discovery,” Yelton said. “You’re supposed to, and the court is supposed to consider how much the case is worth.
“If it’s at most a $20,000, $25,000 case, let’s say we get the data from one person, and if we need more, we’ll modify from there. … If it’s a government antitrust case worth millions, that’s going to be a different data retrieval plan.”
Yelton said the proportionality doctrine might soon spread to the state level, too.
“I’m on the (Michigan) State Bar subcommittee looking at the state bar rules regarding proportionality, and it’s very likely within the next six to 24 months we will have the same rules in state court and in federal court,” he said.
“In the next year or two, those are going to be valuable topics to stay on top of.”