E-Discovery Expertise: An Essential Skill For Litigators

Thursday, February 28, 2013 - 10:09

The Editor interviews Margaret Raymond-Flood, Member, Norris McLaughlin & Marcus, P.A.

Editor: Please give us a brief description of your practice.

Raymond-Flood: I devote the majority of my practice to general litigation with an emphasis on complex commercial matters. I litigate mostly in federal court but also in state court, and I work on a wide range of general commercial litigation matters.  While I enjoy handling all different types of litigation, I have the most experience as defense counsel in litigations involving environmental, professional liability, insurance and intellectual property matters. Obviously, a big portion of my practice involves electronic discovery, so I also consult on matters in the office even if I am not the litigating attorney on that matter.

Editor: Why do clients need counsel with expertise in the area of e-discovery?

Raymond-Flood: It’s very important because companies are generating more and more documents electronically, rather than on paper. Some are migrating to pure electronic methods for the future, and others are even transferring older paper documents to an electronic format. Thus, e-discovery is taking priority in litigations, and it will continue to do so.

E-discovery has a unique effect on the budget and on litigation strategy, and it is very important to manage the e-discovery element of the litigation right from the beginning of the case. Incorrect handling will increase litigation costs, cause duplicative work and, in a worst-case scenario, lead to problems that cannot be fixed later on.

For example, preservation is a very significant requirement that is triggered as soon as an actual or potential litigation becomes known. In the electronic world, the preservation process is different and more complicated than simply telling everyone not to throw away any paper documents. Companies and their counsel need to take action early on, and it’s of critical importance that they know specifically how to manage the e-discovery process. For counsel, this requires a comprehensive understanding of the various options for handling the data and knowing the right questions to ask – both of your client and of your adversary – in order to advise effectively.

Editor: Expanding on the preservation discussion, have companies adequately comprehended the sources of data and the methods of bringing it into the organization in a meaningful way?

Raymond-Flood: There is a definite trend toward improvement, certainly driven by counsel, in helping clients understand the issues and possible solutions. These issues are not new to anyone anymore, but the ability to face them depends in part on the sophistication of the clients. One factor is whether the company has in-house counsel and/or an in-house IT department. While companies with both will have a better understanding of the issues, they still may not be able to apply this knowledge in the context of a particular litigation. Outside counsel can really help here, especially for companies without sophisticated in-house resources.

Editor: Is e-discovery a strategy point in litigation?

Raymond-Flood: E-discovery is a pressure point that is useful in settlement negotiations. It drives litigation costs and budgets, especially in cases that involve large volumes of information, so it is an important factor in a number of determinations: whether to file an action, whether to settle, and how hard to push for specific discovery.

Considerations of proportionality with respect to the volume and cost of discovery, as compared to the damages sought in a particular matter, can often drive settlements. At the very least, the process of thinking through e-discovery issues in this light can help both plaintiffs and defendants better evaluate their case and litigation options. At best, this analysis can bring clarity to the determination about whether settlement is the right option, or whether litigating through trial is a better option.

Editor: Are corporations conducting liability assessments as to the prospect of litigation that specifically include e-discovery issues?

Raymond-Flood: I see this more from the defense side, so I will speak to that here. When companies become aware of a potential litigation, we counsel and guide them toward considering e-discovery to be an important factor in their assessments and strategic planning. I make it a practice to raise this topic early and often during the litigation process. E-discovery can swing a litigation budget tremendously, so I make sure that my clients are aware of these potential consequences. This way, clients can make fully informed decisions that make sense from an economical and a business standpoint.

Editor: How often do you find that clients come to you without any prior experience in this area?

Raymond-Flood: Almost every client facing its first major litigation has little-to-no experience with e-discovery. Clients that have dealt with prior litigations still may not know how the courts are currently handling e-discovery, which really is changing on a rapid basis. Therefore, even the most sophisticated clients are looking to us for guidance because one of our core responsibilities is to stay up to speed on the issues and judicial developments.

Editor: Is it important to have a network of e-discovery vendors with which you are familiar? How does your own experience with available technologies come into play?

Raymond-Flood: It’s extremely important. As outside counsel, we do not select e-discovery vendors, but we do counsel our clients as to the strengths and weaknesses of vendors that are familiar to us. While it’s not necessary to have an outside vendor in all cases, depending on the sophistication of the client, their services are often required. When matters arise, clients may have very little lead time to get an outside expert on board, especially at that critical preservation stage, so it’s very helpful for us to have a group of outside vendors with whom we’ve already worked. We understand how they operate and, importantly, what their billing practices are; thus, clients can make an informed selection based on guidance that we provide.  

I am not an IT expert, so I work closely with in-house and outside technology experts. I do have a general understanding of what’s being used, and I stay in touch with current developments; therefore, even if I don’t understand all the technical components, I know the right questions to ask. This is especially important when I am trying to figure out what internal resources the client may already have.

Further, there are certain terms of art in the technology world that outside counsel has to understand, particularly when setting terms with an adversary. Without this vocabulary, you might end up promising something that you can’t deliver or that will impose unexpected costs and burden on the client.

So it’s extremely important to understand how the technology works, including its limitations and costs, in order to reasonably assess if it was done correctly, and I can guide both my client and an outside vendor through the entire process.

Editor: What is the advantage of having a variety of practice groups involved in the firm’s Response to Electronic Discovery and Information (REDI) Group, and how does it assist clients and outside vendors?

Raymond-Flood: Having the REDI Group allows us to call on various lawyers from our own office to provide relevant expertise with matters. It allows us to fully counsel our clients without the need to rely on outside help. In the case of e-discovery issues, for example, I might be called upon for assistance in the ways I just described above – understanding the technical vocabulary, asking the right questions and vetting vendor tools and processes – all before clients spend money on e-discovery, and even if I am not handling the client’s matter in my own litigation practice.

At the same time, I might need assistance from one of my colleagues, for instance, in the firm’s intellectual property practice area. I enjoy working with trade secrets and other matters in this area of the law, which has unique discovery aspects and really demands a certain knowledge base in order to delve into the very technical and complex issues. So it’s extremely helpful to have the REDI Group in-house, and much more time- and cost-efficient to be able to walk down the hall and ask a colleague rather than bring in outside resources.

Editor: What are the most recent developments in case law pertaining to electronically stored information?

Raymond-Flood: Certainly, one important development is the Da Silva Moore case from the Southern District of New York, which came out in February 2012. In his ruling, Judge Peck said that computer-assisted review, or predictive coding, is acceptable in certain cases. The court looked at various factors, including the cost, the volume of documents, transparency, the superiority of computer-assisted versus manual processes, and the parties’ agreement to use it. Now many outside vendors have started offering products with this technology, and it’s been interesting to watch the development in the software and in methods of using it.

More recent cases are providing the layout of specific protocols, which used to be more about search terms but now are addressing control sets, statistical validation, quality control and random sampling – all ways of ensuring that parties are getting the documents that they want via the predictive coding technology.

Of course, as the software develops and everyone gets better at using it, there will be additional developments. It seems that initial concerns from lawyers about computer-assisted review have been faced off against the staggering costs related to data volumes and manual review hours required to determine relevance and privilege. At least in certain cases, predictive coding may help clients get the job done in a less expensive and more efficient manner, so it’s something we’ll be seeing more of in the future.

We’re also starting to see the orders and discovery outlines that parties are preparing and agreeing to, which lay out a transparent, step-by-step process that everyone is comfortable with. Here, the parties know exactly how they got to the productions, which enables them to correct or limit issues in a cost-effective way.

Editor: How do those developments affect litigation strategy?

Raymond-Flood: Certainly, there is a big impact on the budget and on the process of talking through the budget with clients. Factors in the discussion include the efficiencies of predictive coding, particularly with large data volumes, and the cost of using an outside vendor versus manual review. Translating this analysis into real terms allows parties to consider options in the context of their own volume of e-discovery. It also allows us to avoid disagreements with adversaries, and resulting discovery motions, if we can sit down and lay out a quick and efficient protocol that everybody can live with.

Editor: Do you do any kind of proactive counseling with your clients?

Raymond-Flood: Yes, I started reviewing e-discovery and retention policies for the firm’s clients when the e-discovery rules first came into play a few years ago. It’s very important to have such policies but even more important that clients follow them. So we’ve reviewed policies for a number of clients, updated them as necessary and generally helped clients to understand what makes the most sense for the company.

Please email the interviewee at mraymondflood@nmmlaw.com with questions about this interview.