We’re thrilled to be featured on the Kansas City Metropolitan Bar Association’s podcast, In Re KCMBA. As the Official eDiscovery Partner of the KCMBA, we join Attorneys Samuel Wendt and Bill Martucci to discuss eDiscovery, ESI, and making the most of remote litigation.

Podcast Guests & Hosts

  • Sam Wendt, Attorney, Wendt Law Firm P.C.
  • Bill Martucci, Attorney, Shook Hardy & Bacon
  • Eric Kelting, Co-Founder, Complete Legal
  • Jeff Dreiling, Co-Founder, Complete Legal

eDiscovery Discussion Points

We share our expertise on all things eDiscovery, including:

  • Data, electronic data and electronic stored information (ESI)
    • Things like: email, Word documents, mobile devices, social media and collaboration tools like Slack
  • The basics of eDiscovery (aka Electronic Discovery)
  • How Complete Legal helps clients solve issues with data, like:
    • Identifying data needs
    • Requesting data
    • Reviewing and organizing data
  • When is it best to engage an eDiscovery provider like Complete Legal
    • Traditionally eDiscovery and eDiscovery consultants were only used on big cases, but now it’s cost-effective and efficient to bring us in on even smaller cases
  • With the pandemic, a lot of attorneys are turning to eDiscovery and databases based on the need to review things remotely
  • And bonus content like: Deduplication, spoliation of documents, ADR (alternative dispute resolution)

Listen to the full podcast on Apple Podcasts, Spotify or inrekcmba.com!

 

PODCAST TRANSCRIPT

Welcome to In Re KCMBA, your go-to podcast for legal issues, war stories, and law talk from the KCMBA community of lawyers, judges, and friends. Now, here are your hosts, Sam Wendt and Bill Martucci.

Sam Wendt: This is Sam Wendt. I am the current president of KCMBA.

Bill Martucci: This is Bill Martucci, and I’m the president-elect at KCMBA. We’re really delighted to have this series of In Re KCMBA, a podcast designed for you, our fellow lawyers, and judges and members of the community.

Sam: All right. Bill, I’m excited for this episode of the podcast. Today we’re going to speak to some experts in the field and get a dummies guide to remote litigation like those yellow books that we’re all familiar with. I’m sure you saw recently, as millions have across the country, where the attorney’s granddaughter had a cat filter on his computer during a hearing. I think one of the greatest lines in the history of jurisprudence is that I’m here live, and I’m not a cat. That obviously would mortify me and many lawyers. They seem to take it pretty well. I can’t believe those other two lawyers in the video didn’t bust up laughing, but somehow they made it.

Bill: You say it well, Sam, and as you know, you’ll say more in just a moment, but we’re here with two distinguished colleagues with Alaris who will educate us and, in that regard, hopefully we can avoid that cat statement publicly in the courtroom.

Sam: Yes. Thanks, Bill. We’re going to talk about the best practices for remote depositions and hearings and presentation of evidence by some folks at Alaris, and then later on we will talk to some experts at Complete Legal Services about the remote gathering and storage of discovery items and electronically stored information, but first let’s introduce Adam Weaver, who is the managing director at Alaris. Adam, tell us a little bit about your position at Alaris and what you do.

Adam Weaver: Thanks, Sam, and thanks, Bill. Yes, I’m Adam Weaver. I’m the managing director of Alaris Litigation Services. Some brief history on me is I actually moved to Kansas City in 2009 to open up our operations there. Over the course of several years, Leah Gibson, who’s one of our account managers there, and myself and many others have built out that office, and forged a relationship, a great relationship with KCMBA which you guys have been great with our growth in the market.

Sam: Thanks, Adam. We also have with us Jean Miller, who is the trial and media services manager at Alaris. Jean, tell us a little bit about what you do with Alaris and your involvement with that company.

Jean Miller: Absolutely. I’ve been with Alaris for 16 years, and my main role is to facilitate the processes, production, and distribution of materials and depositions, the like for the company, as well as manage our trial team so we can provide support in the Kansas City, St. Louis markets across Missouri as a whole in general.

Sam: Great, thank you. Alaris is the official litigation partner of KCMBA. We enjoy working with you folks, but I really want to get into some of the nuts and bolts and details of the best practices with remote depositions and hearings. In terms of my practice, I primarily use the Zoom and Webex platforms. I know there are lots of others that are out there, I think, BlueJeans and others, but why don’t you guys tell me a little bit about the best practices and what you’re seeing with some of these online and web-based platforms?

Adam: Yes, absolutely. You’re right. There’s about a half a dozen platforms out there, whether they be Zoom, Webex, GoTo Meeting, FaceTime, what have you, but the two primary platforms that are being utilized are Zoom and GoTo Meeting. The courts weigh heavily more on GoTo Meeting. I can confirm or Jean can confirm this, but I think later on, on the next month or so, the state of Missouri court system is going to be mandating that any hearings, trials, anything actually have to go through Webex.

Then on the private end, the depositions and whatnot, that’s where we’re seeing Zoom being utilized more often than Webex. There’s a lot of reasons why Zoom works better on that end and there’s a lot of other reasons why Webex works very well in the court’s view. Some of the things that work well on Zoom, just everyone’s familiar with it. While the audience might be sitting in on a video conference, doesn’t matter the platform, day in and day out, the witnesses that are being deposed aren’t always as familiar, but everyone’s familiar with having that Sunday dinner or that birthday gathering or that virtual baby shower.

Those are generally facilitated by Zoom. It’s a big thing that we look at is how familiar your audience is going to be with utilizing a platform. Then on the back end of the system, some things just run better through Zoom versus Webex. There’s a big question about how video is captured. Now, we record a lot of trial video through Zoom and Webex, but Zoom being our primary platform because–

Sam: Do you record it using the Zoom record function that everyone sees, or do you guys record it in some other manner?

Adam: Good question. Jean can touch on that one.

Jean: Yes, we record using the Zoom cloud using US servers and secured backend. To Adam’s point is, yes, both platforms offer many options, and if you’re starting or you’re creating an account to do so, make sure you understand those settings. A lot of firms and themselves or users don’t know that. We utilize the cloud to reduce any local recording to reduce, I would say, extra copies floating around and making sure that we have a tight grasp on where the materials are going, who has access to it.

To Adam’s point earlier, yes, Zoom offers a wider option for recording, meaning you can record the witness, the materials, the materials mixed with the witness, audio only. Webex is great, but it is very limited. You have A or B. You don’t have the multiple recording options. For a litigation point of view, we push the Zoom because we can come back in a year or two whenever the courts open up and you’re going to use this materials from depositions in court. You have that option to go back and use the correct material based on the judge or the ruling on the floor.

Sam: How do you guys deal with exhibits and the presentation of exhibits and the exchange of exhibits? When this pandemic first started, that was one of the biggest problems that I had was just figuring out who we send the exhibits to, how do we present them to the deponent, and so on. How have you guys dealt with that?

Adam: Great question. It’s a broad-stroked question because you can go highbrow or you can go lowbrow with it. Looking at the highbrow route, there’s several platforms that are standalone services such as– or software services such as eDepoze and AgileLaw. Those are two software-based systems that allow the parties to facilitate the introduction and sharing of exhibits within a virtual setting, but then you also have just emailing exhibits back and forth between people.

That’s a good question to always ask the vendor that you’re going to be working with that’s facilitating the depo if they have chat functions turned off, the private chats or if they have the transfer of documents turned off. We have made the decision as a company to turn off private chat in our depos as well as we don’t allow the transferring of documents via the chat function. We just don’t want that kind of stuff being facilitated within the platform.

All of our court reporters are set up to be able to digitally mark exhibits, utilizing software systems like free ExhibitSticker.com or Done By Five, those are free exhibit sticker platforms that anyone can go out and actually stamp the exhibits, pre depo or post depo.

Sam: Jean, how are you guys dealing with– and can it be recorded when someone shares their screen? I’ve used that function some where it’s almost a combination of eDepoze and the old traditional sending it via email or in paper form. How have you guys dealt with the share screen function, and has that worked well?

Jean: Absolutely. It’s worked very well. There’s two different approaches here. Anybody who shares materials on our platform, and we have that open to all parties within that Zoom meeting or Webex, can show those materials. That is recorded clean. The material, as a whole, is brought up in its native resolution, anywhere from low res to high res 4K, it’s all being recorded. On our settings we will record with and without the witness’s photo or video overlaid in the corner, which we call PIP.

You might be familiar with PIP use or showing of documents in court, but that is one extra stream that we’re recording live in the cloud at the time of the deposition. In post-production, if you are not an individual who feels comfortable in sharing your screen or materials, we have technicians and others can show on your behalf. That’s another application or platform where we’ve utilized trial technicians. Courts, vendors, any of those who have individuals who were in court showing materials through trial software can then apply that to a Zoom or a Webex just by inviting them and having them share the materials. It’s just an extension of the use of the tool that we utilize in court.

Sam: Jean, when this is presented at court, I’ve been curious about this, and frankly, it hasn’t come up in my practice yet, when we’re presenting the evidence, let’s say to a jury from a deposition that was taken remotely by Zoom, what are the jurors actually seeing? Are they seeing, many of us know the traditional four or six boxes of each of us sitting there talking, or is it the deponent exclusively, maybe with the shared screen next to– What are the jurors seeing?

Jean: The jurors will see what we call a spotlighted view. On either platform, we will assign a video technician, such as myself or videographer, and one of their roles is to spotlight that camera or that feed. While the bobbing heads or popping heads is nice, we’ll record a feed that’s dedicated just to the witness so that that is overlaid on those shared materials. We do record one feed of what we call the Brady Bunch or the gallery view just as a backup in case connection is lost or there’s a demonstrative shown by attorneys. We have a few options to crop out if needed, but the primary recording will be the witness alone and the witness plus exhibits recorded as well.

Sam: Okay, that’s good to know. Thank you. What do you guys recommend in terms of audio access and cameras? Mini laptops and iPads have built-in microphones and video recording devices. What do you guys recommend in terms of actual hardware to use for these depositions or arbitrations or whatever they may be?

Jean: Oh, wow. The recommended hardware, I would say the line of Logitech brand. They’re the defect, I would say, to go for a hardware both on a local individual level and a room level because some firms want to have multiple individuals that come there, come to the deposition and show materials. Having an external device such as a Logitech, say like a C90 or 3C92, will allow that witness or that individual to join and have a all-in-one unit. It will have a microphone and a HD camera will allow you to have that better presence, and it’s detached.

I know it’s not a big feature, but it allows you to mount it in such a way that’s either higher or lower to the side so that if you’re on a laptop device, you’re not restricted to maybe a pinhole size camera at the bottom of your keyboard. Given these unflattering views of up the nose or off to the side or low quality because that mic pinhole is right there by your keyboard so as you’re chatting, you’re talking, and you’re clicking the keys, it’s all picked up.

If that is unavailable to you, other options such as ear pods from Apple and stuff like that are great. Anker has a great line of these materials as well. It’s A-N-K-E-R. With those, they’re great and they’ll allow you multiple hours of recording and they’re dedicated. Those are the two biggest things I would recommend is Logitech, Anker for your hardware materials.

Bill: Adam and Jean, this is Bill, and I just wanted to build on what Sam is asking about and change the focus slightly, if that’s okay. The questions I have with respect to depositions in Zoom, and then I was going to ask you to take us into the world of Webex from your perspective and perhaps the rationale for the courts pretty much adopting Webex. With respect to depositions, any common errors that attorneys make, any common errors that witnesses make that you think would be helpful to point out so perhaps we can gain the benefit of your insights? Then I wanted to ask you to– what’s Sam’s guidance look to that whole question of Webex and the court’s use of Webex?

Adam: The basics, really, just being aware, not muting themselves when they should mute themselves. We have heard some unflattering conversations being recorded. Turn off your camera if you’re going to be stepping away and you’re on the break. People don’t think about that, but those are big things that could be very impactful. Making sure that if you are recording the video yourself, that when you go on a break, make sure that you stop the recording because you could– If you haven’t muted yourself, there are off-the-record conversations that could be captured that could then invertently make it to opposing counsel’s hands.

Sam: Great recommendation. I’ve seen that happen [laughs] a few depositions. Going along with what Bill had to say, tell us a little bit about Webex and do you know why or are you familiar with why the court system chose Webex over something like Zoom? It could be even a cost saving situation, but tell us a little bit about your experience with Webex.

Jean: Sure. The Webex experience, in my guess, best educated guess, I would say, for why they’re doing it is involvement of their IT departments. Webex has a great integration with pre-standing environments. The IT department can roll out on a much higher level to push and allow or restrict very many factors such as equipment, user, licensing. It’s a great platform to push and manage those from a large perspective.

Zoom is a little bit more different. It’s smaller group. They can handle both, but Webex is definitely the winner when it comes to deployment and management ability of those minute details. Money could be also a factor. Often firms I run across who are using them or the platform is already in place is they already have a Webex Cisco room so they already have hardware that are in many of these conference rooms that play right into using their software.

Sam: Now, I understand some of your Alaris offices have Webex and/or Zoom rooms, right?

Jean: That’s correct. We have licenses for both and I would call premium licenses, which I would recommend is buying the extra audio add-on or call feature. Either platform.

Adam: I’m glad you mentioned that, Jean. The audio integration is a big thing that is often overlooked on both platforms. I know the courts don’t have the audio code integration with it. They force you to rely on the audio coming through your internet connection. That could be unfortunate when you have people that have unstable internet connections. We use the audio code integration as well. If people start having poor internet connections, they can use the audio codes that are embedded into the system. They can do the call me directly from Zoom, or there’s the audio codes listed when it says join now.

Bill: As we look to the wrap up of our good discussion, any sense you have of how common Webex may be in the courts in the future, post pandemic?

Jean: Yes. The best experience I can get through is through my wife. She is a member of the court system, so I get those back end information. It’s going to be around for a while. They’re starting to use or have been using it for a number of months now, but more importantly, daily. The judges in the platforms are using these to have conference calls, to move litigation as much as they can while they’re in a stalemate with all venues.

Once it’s established, it’s going to become de facto, the norm. Every day, let’s have a hearing. Here’s this information. The clerks will start sending these out. Then as the courts are opening up, or their phases change, and we haven’t talked about that, but each court or county has a phase for the state of Missouri. That information can be pulled up online, and I can provide the link later, but it’ll dictate whether a county is even going to seek any hearings. They’re going to have to rely on Webex to facilitate any materials going forward.

Bill: You do wonder, looking down the road, if Zoom or Webex platform permits us to have not only hearings, but perhaps even trials. There’s more and more discussion of that. We know there have been some early Zoom trials. We really appreciate you all being with us. We’ll let Sam close this out but these tips and pointers are most appreciated.

Sam: Yes, gentlemen, thank you so much for being here. Adam Weaver, Jean Miller from Alaris, we appreciate your expertise. We appreciate your information. I am hopeful that I will not have a cat background or filter on for my next hearing. I thank you for your time, gentlemen. I appreciate it.

Adam: Thank you all.

Jean: Great. Thank you you.

Sam: Thank you for Alaris’s insights. Now we’re here to talk about the remote gathering and storage of discovery material and information and electronically stored information from some of our experts at Complete Legal Services. Complete Legal is the e-discovery partner of KCMBA, and we’ve worked together for a long time. First I’d like to introduce Eric Kelting who is one of the co-founders of Complete Legal. Eric, tell us a little bit about what you do with Complete Legal and your involvement with the e-discovery process.

Eric Kelting: Yes, absolutely. Thank you, Sam, thank you, Bill, for having us here today. I’m Eric Kelting, one of the co-founders of Complete Legal. I do a lot of the behind-the-scenes things at Complete Legal, so a lot of the administrative work, admin, banking, finance. We affectionately call me the CFO though I think I’m a bookkeeper most days, but been an e-discovery for over a decade. I enjoy really running and growing the business in the background and let folks like Jeff be the face of the organization.

Sam: All right. Well, thanks, Eric. Also joining us is co-founder Jeff Dreiling. I know he really does a lot of the e-discovery consulting for the group, but tell us a little bit about what you do with Complete Legal, Jeff.

Jeff Dreiling: I run the day-to-day e-discovery vision I guess we would say, so making sure that we’re positioned where we need to be to solve our client’s problems when it comes to data and then evangelizing that message as well. Helping to do things like this and consulting is probably where I spend most of my time. Specific case consulting with what are the options here, what are the rules say we need to do, what are the cost, what are your recommendations? This where I live 80% of my time probably.

Sam: Well, thanks, guys. Obviously, Bill Martucci is here with us also, and Bill I think you really in your practice are involved with e-discovery and ESI a fair amount. Generally, can you guys tell us what is e-discovery? What is ESI? Tell us a little bit about it in this new COVID pandemic world that we live in.

Jeff: Well, I’ll take that one to start, Eric. With ESI discovery, it’s all a catchall phrase that really is just part of the discovery process. When we talk about ESI or e-discovery, ESI is electronically stored information, e-discovery is electronic discovery. It’s the electronic files that are part of the discovery process. Everything from emails, to Word docs, but then in today’s world more like mobile device information, social media information, collaboration tools such as Slack and things like that are involved more and more in today’s lawsuits. When we’re identifying, requesting, and then reviewing those information so that’s where we talk about ESI or e-discovery.

Sam: In my practice, I know in the past, when I first started, we would get 20 or 30 boxes of materials that were produced in paper format. Obviously, that has changed a lot since then. Tell me a little bit about e-discovery and how that works. Also, I want to talk a little bit about volume. I think people somewhat get confused that there has to be hundreds or thousands of pages of material to utilize an e-discovery group like yourself. Talk a little bit about that. I’m not really as well versed, and really want to know when it would be best to use your services or go the old-fashioned one.

Jeff: I think, Sam, traditionally the way you described is it’s not a big case, so we don’t need e-discovery, we don’t need a database. That was pretty much true 15, 20 years ago. E-discovery was extremely expensive and cost prohibitive in the early days, but now everything has scaled down. If you have millions of documents, you’re going to pay a higher fee than somebody that has thousands of documents. That was not always the case because of technology and because of the price hurdle to emerging technologies.

Although with the pandemic, a lot of our customers are new to databases out of necessity and need, the technologies that are being embraced right now have been around for 15 years, 10 years. It’s not necessarily new technology and because of that, it’s able to scale down based off the size of the case or the need as far as the pricing.

Sam: One of the services I know that you guys did for a case of mine, I was produced hundreds or thousands of pages of documents many times, and there would be 10 duplicates of the exact same documents. Tell me how you guys deal with that. I remember at one point, I think I had a case that had 10,000 documents or 10,000 pages, but once you take out all the duplicates it turned into several hundred.

Jeff: There’s a couple of different strategies for that. There’s deduplication, which is a objective way to go through and get rid of exact duplicate files within a collection of whatever. The problem with that is that if somebody opens a document, makes one change, whether it be a visible change like changing a word or just a background change like adding two spaces to the end of the document, they are no longer exact duplicates.

You’ll still look at the same document 100 times and be like, “How did this not get caught?” There’s also near duplicate technology where it can assess the likelihood of a duplicate up to a certain fault tolerance. If you want 98% or 90% it can go through and look at other similar characteristics and get rid of near dupes for you as well. I think, on your case, that’s actually what you ended up using.

Eric: There’s a big difference between deduplication when you have two electronic files that both started electronically. If you have a Word document that’s saved emailed around, we can deduplicate that, like Jeff was describing. What happens a lot of times and I think Sam probably runs into this in a plaintiff’s practice where you’ve been produced documents that have been scanned, and it’s hard to tell. They look like they’re identical contracts or medical records, but the computer sees them as two separate PDFs maybe created on separate days, and so the computer doesn’t see them as exact duplicates even though the content or the substance is absolutely.

That’s where that near dupe technology comes in handy, especially with scanned documents, where it actually looks at the text of the document and says, “I think there’s about 95%, 90% of the words are the same.” That does get tricky where you’ve got documents that come to you electronically, but they didn’t originate electronically, if that makes sense, because they were scanned in or different hard copy variations that have now been digitized.

Sam: Bill, where do you see this in your practice?

Bill: Well, I think the aspects of this that come up are really well-defined in many respects by a lot of fine work that Complete Legal has done. In other words, in so many of the cases, there is this question of spoilation. Has there been a problem with retention or lack of retention of documents? I can say from the perspective of someone who is involved in business and employment litigation on behalf of companies, that’s a real concern because as we know, if in fact there’s a spoilation issue, then there can be an adverse instruction.

That might add to the perception that perhaps business is not being as open and transparent and fair as one would hope. Then that other question that comes up so much, Sam, is proportionality because the efforts that are often made to request information are rather broad. In all sincerity, I’m very impressed by a lot of the key points that you’ve made in your work, Eric and Jeff. I wonder if you can take us through the life cycle of a case. In other words, think about pre-discovery, think about discovery, think about where it’s leading for potential trial, where in today’s world, ADR, where we’re going to use this information quite effectively.

Now, if you would, first start looking at it from the plaintiff’s perspective. I’m with a fine plaintiff’s firm of six to eight lawyers, or perhaps I’m by myself with another fine colleague, and we really want to be reasonable, but we want to get a fair amount of information. I know it depends on the context of a case, but what kind of counseling and guidance do you give along the way in that regard? Then after that I’ll ask you a little bit from the defense perspective in terms of those questions about perhaps testimony that you provide or an impartial outside look at some of these questions for proportionality.

Jeff: Well, and I’ll start with the plaintiff side. I think, no matter how we’re engaged or when we’re engaged in the case, one of our first questions is usually where are we going with this, and we try and begin with the end in mind. The reason is, is because with anything e-discovery based or ESI based, some things are really hard to do twice and expensive, and some things are impossible to do twice. If we don’t know where we’re headed, we’re doomed to fail.

A lot of your spoilation issues, Bill, that you mentioned come in to play there, you only get one chance to collect data. Just because you collect it, does that mean you need to process it, and review it, and pay for all that? Absolutely not, but you need to collect it and make sure that it’s there in case you ever do need to go back to it. From there, we just game plan out the case. Our job we view as twofold.

One is to ensure that our clients that retain us know what information and what format they’re entitled to, but it’s also to let them know when they’re being unreasonable, too. Although there’s times where it can become adversarial, 9 times out of 10 when we’re retained by one side or the other, we end up working cooperatively with the other side, and that’s the way that e-discovery gets done efficiently and economically. That’s not always the case.

You mentioned proportionality, and a lot of those proportionality claims came out of plaintiff’s counsel, quite frankly, not being as educated as you would like on what they’re entitled to, asking for all of your documents from all time because this is the most important case I have. Whereas the business has a burden of collecting those, reviewing those, and producing those at quite an expensive time and effort and also money. If we can help the plaintiff’s side understand that only ask for what you need because this isn’t necessary, it keeps the whole process going. We try and avoid proportionality claims before they’re even brought up because nobody wins when that happens.

Eric: A big part of that is advising plaintiff’s lawyers on the format to request it. What I saw definitely early when e-discovery was just becoming mainstream was a lot of plaintiff’s lawyers would ask for discovery in PDF, or to Sam’s point in hard copy form, or I’ll take it electronically, but PDFs would be greater, searchable PDFs. Defense firms quickly realize like, “Oh my gosh, I can data dump or document dump on this poor two-person plaintiff’s firm and really bury all that information in there.”

Just allowing folks like us in early on so we could advise on how to request it, even if it’s just the format, and what are we going to do with that, how are we going to review this discovery when it comes, when it’s produced to you, can help significantly get through that information quickly, or else you might show up with 60 boxes of documents or a hard drive with millions of PDFs, which isn’t really that beneficial at all.

Bill: The points that you make, Jeff and Eric, are so instructive, truly. You know that a lot of this began thematically from a legal case law perspective, from decisions from Judge Scheindlin in the southern district of New York, the well-known Zubulake versus UBS case. That was an employment case and one that set forth appropriate protocols.

I wonder what you think about as you work with clients, say, on the collection side, which might typically be more the business side because I think we know it’s somewhat asymmetrical that if I’m a plaintiff, there’s a legitimate request for a fair amount of information, but then if I’m a company, it pretty much is designed to go to me as company as opposed to the plaintiff’s information is probably rather limited. Just looking at that, what protocols do you think are wise to have in place to ensure that you’ve undertaken the collection appropriately?

Jeff: I think the first thing is making sure that you’re being advised either in-house or out-of-house by somebody that’s an expert in this area. Each platform, each device that we collect from has different rules that we need to follow. Collecting a hard drive from a computer is completely different than going into someone’s Facebook account and getting their posts and their likes. Making sure that you have somebody that knows if I follow these three steps, then there will be no spoilation, but if I don’t, then I will ruin everything.

That weight has some validity to it. Collections are something that just because you’re an IT professional doesn’t mean you’re a collections expert. The way computers work are completely different than the way we collect data from a computer system without affecting the metadata of everything around it or the things we’re collecting. Those types of things are very important to keep in mind when you are at the collection phase. There’s standards across many devices, but the fun thing is, is that technology is evolving way faster than the law.

There’s not a lot of standards on some devices or platforms and so it takes a cooperative effort and a lot of it is showing your work. If you’re involved in a litigation, “Hey, we’re going to go collect this data. There’s no software specifically designed to do it. Here’s our protocol that we’re going to follow as we collect this. If you have an expert in-house or out-house, you want to review and advise us before we do it. Let’s go ahead and talk about it.” Versus, “Here it is. It messed up. There’s nothing we could do.” There’s a big difference in the outcome of those two.

Bill: Jeff, is there a fair amount of work you do that would be with companies in the consultative stage and working with their internal IT people, but also being a little bit more neutral so that if there was a need for a person to testify as to protocol or testify as to collection?

Eric: I was going to elaborate on Jeff’s point, and we can segue right into that, Bill, because it’s a really good question, but a lot of the collections we do, we call them friendly collections. Now, in this example, it’s friendly because we’re working with you and your client to get your hands on the data. Maybe Sam doesn’t see that as friendly as the plaintiff’s lawyer, not sure what’s going on until he sees the productions, but we’re usually working alongside in-house council, in-house IT, and outside council, especially working with in-house IT to understand where is the data, what programs does the company use, is there any proprietary programs and proprietary data?

That in-house IT department is extremely valuable. It’s, to Jeff’s point, when e-discovery first became a thing, our industry did a really bad job of really selling fear to, especially defense firms and corporations, saying, “If you don’t outsource your data collection, you’re going to do it wrong, it’s not going to hold up on a cross. You’ve got to bring in an expert.” The reality is that a lot of in-house IT departments are very capable of getting their hands on the data, but yes, you’ve got to document the steps you took because if Sam is opposing counsel, he needs to make sure that you didn’t conveniently overlook key custodians and key email inboxes or devices.

Having a agreed upon protocol, plan, and document is really important no matter who’s going in to collect the data. To your second question, Bill, yes, absolutely it doesn’t– You probably see this firsthand as an attorney. A company or corporation goes through litigation, and they realize, “Oh my gosh, we have got gaps in the way we retain data, store data. We’re not litigation ready.”

I know Jeff does a lot more of this actual consulting work, but yes, we’ll come in on the back end of a litigation with the company and say, “Hey, if this ever happens again, how can we be better prepared or have less expenses involved?” Start working a consulting angle there to start helping them actually get their arms around their data internally.

Bill: The points that you make are most appreciated. I’d like to ask you two questions, and then we’ll wrap up pretty briefly. As plaintiff’s counsel, ever gracefully said, what missteps might I make, what guidance might you offer that would permit me to be ever more effective in my role as it goes to e-discovery more broadly with respect to the electronic world, and then as defense counsel representing companies, what guidance might you have as the typical missteps that you see?

You can be candid because we realize that lawyers have many gifts, but we also can learn a great deal. Any tips in that regard as Sam and I would be most eager for our colleagues in the bar and the bench to learn?

Jeff: I’ll start as, on the plaintiff’s side, the tip is that just because it’s a small case or just because it’s not a big potential value case doesn’t mean that you need to ignore the electronic files. We’ve seen more cases go from, “Oh, there’s nothing here, we just got to walk through the paces type discovery,” to, “Holy cow, look what we found,” through ESI than you would ever believe. The message to the plaintiff’s counsel is do the work on discovery, put in the time because you don’t know what your case is until you have that data. Eric, why don’t you share some defense advice?

Eric: Yes, this one might sound a little out of left field, but I think for the defense advice would be to educate yourself to the point you don’t blindly trust or believe your client. Worked on a lot of cases where the corporate client says, “That’s impossible to get to this data. It would cost tens of millions of dollars. It’s impossible.” You walk into court to make that argument to the judge. A plaintiff’s lawyer puts a consultant like Jeff on the stand and goes, “No, it’s actually pretty easy, and it would only cost about $100,000, not tens of millions.”

Educate yourself enough to where you know if your client is being fully honest with you on if something’s available and what the cost would be. I’ve heard that from a lot. Just unrelated to e-discovery, I’ve heard a lot of defense lawyers over the years say that they need their client to be honest with them back so that they can properly defend them. I would say that would be my advice is to educate yourself so you understand what systems or things that they’re using internally at the corporation.

Bill: Eric and Jeff, I will let Sam close us out with our gratitude for you each, but I think the points you made as pointers for we in the bar are very powerful. Thank you so very much.

Sam: Yes, gentlemen, thank you for your time. Eric Kelting and Jeff Dreiling of Complete Legal Services. We appreciate your time and your expertise. Obviously, this new electronic and remote environment that we live in with the pandemic has changed many of our practices. I think most of these different things that have been introduced to many of us in the last year are here to stay. I appreciate your information, and thank you for the time.

Jeff: Thank you, guys.

Eric: Thank you, Sam. Thank you, Bill.

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