E-Discovery And Technology-Assisted Review – It Doesn’t Happen “Automagically”

Thursday, May 22, 2014 - 11:23

Editor: Please tell us about your professional background.

Brennan: I’ve been very fortunate to have fantastic mentors and experiences in the last 20 years. Currently I am a director at iDiscovery Solutions (iDS), where we provide consultative and expert e-discovery services to corporate clients and law firms, guiding them through the entire EDRM lifecycle.

Prior to iDS, I followed a fairly typical law firm career path, starting as a paralegal and ultimately becoming a partner at Gilbert LLP. My practice primarily focused on the representation of corporate policyholders in the recovery of insurance proceeds from their insurers.

While at Gilbert, I managed a professional liability malpractice dispute that turned on whether the policyholder was aware of certain facts during a certain time period prior to the renewal of the insurance policy. Discovery focused on the email communications between key employees to demonstrate whether they did or did not have specific knowledge of those facts. The client engaged iDiscovery Solutions to assist with strategic decisions associated with the preservation, collection and processing of ESI. Based on my positive experience with iDS and my interest in e-discovery, I joined iDS as a director at the conclusion of that matter.

Editor: How has your legal experience impacted your ability to educate clients? 

Brennan: Education plays a major role in the consultative services offered by iDS. During my legal career, I developed subject matter expertise on topics related to the intersection of law and technology. My legal career also allowed me to develop a clear understanding of what law firms and corporate clients want and need. While I don’t hold myself out as a technologist per se, I understand the underlying technology and can explain those aspects of e-discovery in a manner that is meaningful for attorneys and litigation support staff. My legal experience gives me great insight into our clients’ problems and how technology can help resolve them.

Editor: As an e-discovery consultant, what are some of the challenges you face regularly in supporting clients?

Brennan: As an attorney, I was responsible for supervising multiple litigation teams and projects, which included evaluating workflows and staffing, as well as monitoring deadlines and budget targets in order to meet critical, time-sensitive client objectives. That focus remains largely the same in the consulting world: the challenges I face today are managing client expectations, meeting deadlines and keeping within set budgets.

Project management skills and understanding the scope of work are essential. Oftentimes, the discovery process is ruled by chaos rather than managed by a clear project plan. By leveraging my legal experience and e-discovery expertise, I can bring structure and definition to the process, and partner with the client to co-manage the workflow and the deliverables.

Editor: Based on your experience both as an attorney and an e-discovery consultant, do you find that corporate counsel and the bar resist the incorporation of e-discovery into the practice of law?  

Brennan: My observation is that it’s mixed. Certainly a number of law firms can claim dedicated e-discovery practices and deep subject matter expertise, and many members of the bar are very knowledgeable about e-discovery. However, my sense is that a good portion of the bar views e-discovery negatively and has avoided it. I had the good fortune of speaking at the ABA’s Section of Litigation Annual CLE Conference in April, which draws attorneys from all practice groups and specialties. A fair number of the presentations addressed emerging e-discovery issues; however, those sessions attracted fewer attendees. I was surprised at the number of discussions I had with attorneys who commented that there was an unspoken agreement with opposing counsel that neither side would request the production of ESI. Some attorneys also candidly admitted they found it difficult to garner their corporate clients’ support for undertaking e-discovery efforts. Theoretically, avoiding e-discovery might make the mechanics of the discovery process easier and less expensive, but just imagine the vast amount of potentially relevant information that could be ignored as a result of this mentality.

Meanwhile, surveys show that corporate counsel expect their outside counsel to be well-versed in e-discovery – to be able to manage the e-discovery process, provide expertise on best practices, and effectively navigate the rules and regulations related to e-discovery. However, outside counsel are usually hired for their subject matter expertise rather than for their e-discovery capabilities.

This is where iDiscovery Solutions has formed successful partnerships with corporate clients and law firms. As consultants, we can bridge the information gap and help develop a strategy to address the e-discovery process – the preservation, collection and ultimate production of the necessary, relevant information. This allows the attorneys to focus on the merits of the dispute rather than the mechanics.

Editor: Please comment on the development of the FRCP Rule 26 meet-and-confer. Are your clients embracing use of the meet-and-confer as a way to set the stage for proportional discovery?

Brennan: We have worked with clients to utilize the Rule 26(f) meet-and-confer successfully to put issues on the table regarding the scope of discovery needed, the most likely sources of relevant information, the costs and burdens associated with producing ESI, whether those costs and burdens are proportionate to the disputed issues, the best way to collect ESI, and the format in which it needs to be produced. The conference offers a lot of opportunities for participants to understand the discovery landscape and to identify cost savings up front.

That said, I also believe that the Rule 26(f) conference is overlooked or not approached with full preparation. In my opinion, the reasons for this are twofold. First, the Rule 26 conference encourages a collaborative discovery process, which is contrary to the adversarial, sometimes scorched-earth litigation approach that many seasoned litigators are accustomed to. The meet-and-confer changes the tenor of litigation by encouraging cooperation and a joint e-discovery plan early on, and that might seem counterintuitive for some attorneys. In truth, the Rule 26(f) conference doesn’t mandate a discussion of the merits of the case or require you to hand an adversary a roadmap to where the most relevant information might be stored. Rather, it’s an opportunity for both sides to craft a thoughtful approach to discovery that may include an agreement to put certain sources of data that are not reasonably accessible to the side under a reservation of rights, or to memorialize a clawback agreement for the inadvertent production of privileged ESI.  

Second, I think some of the attitudes towards both the Rule 26(f) conference and e-discovery in general come from an educational gap surrounding technology and IT systems and a reluctance to join the conversation. Many times, e-discovery is presented to the legal community in the context of a threat of a spoliation ruling or the fear of a sanctions motion. It’s my impression that this fear carries over into the perception of e-discovery itself, resulting in a resistance to understanding and/or embracing e-discovery – and, consequently, the meet-and-confer.

There are significant benefits to the meet-and-confer process, and it shouldn’t be undertaken in isolation or without preparation. The conference requires input of in-house counsel, who are the guides to the company; IT personnel, who understand the systems and where the data is stored; and records managers, who oversee the retention of paper documents and long-term storage. All of these stakeholders can collaboratively help educate outside counsel about where the key data is maintained and how it is stored. Armed with this information, the parties can arrive at a discovery plan at the outset of litigation rather than months or even years into the discovery process itself and after key decisions about preservation and collection were made.

Editor: How would you describe the legal industry’s attitude toward technology-assisted review (TAR)?

Brennan: Generally speaking, technology-assisted review is a process whereby subject matter experts review a subset of documents and then a computerized system extrapolates those human judgments to a larger corpus of data. While we’ve seen some judicial acceptance of TAR – and there are many attorneys who are proponents of its use and have in fact implemented it – my observation is that there’s not a mad rush to adopt TAR. I believe this stems from not understanding the underlying technology (as I mentioned earlier); resistance to being the law firm that tests the waters on the acceptability of TAR; and a fear of overreliance on technology in the discovery process. Attorneys may also feel they’ve been successful using other data-culling methods, such as keyword searches, and therefore are not motivated to explore a more fulsome use of algorithm-based culling.

The bottom line for any litigation team is to develop a measured approach to discovery that is transparent, defensible and easily explained to opposing counsel –and, if needed, to the judge. Technology-assisted review meets all those criteria.

Editor: As a consultant, what do you consider to be the most significant misconceptions surrounding TAR?

Brennan: First, attorneys believe that they’re losing control of the review process by leveraging TAR. There’s a perception that the categorization of documents as responsive or non-responsive is something that’s performed in a manner that I describe as “automagically” – that you just press a button, and poof! The software does it all. To the contrary, technology-assisted review involves senior-level attorneys and subject matter experts who get an early look at the data set and heavily influence the responsiveness determinations. Human review is an integral component of the TAR process. 

I should add here that technology-assisted review, unlike a linear review approach, is not viewed as an intuitive process, and this, understandably, might put some attorneys off. TAR requires a very different review workflow that may be difficult for attorneys to implement initially and cause anxiety around reaching important benchmarks. The challenge is getting attorneys to be comfortable with the process and allowing the software to perform as intended.

The second misconception is a related one: that TAR eliminates any linear review of the document set. To the contrary! In order to train the analytics engine, there is a linear review of seed set documents and perhaps multiple samplings of the document set until the analytics engine can draw enough information about the concepts in those documents to apply those determinations to the remainder of the data set.

Document review is the most expensive part of the discovery process and TAR can be deployed in a variety of ways. For example, it can be used to tier the data so that responsive documents are tackled first. In some instances, documents categorized as responsive are then reviewed in a linear fashion for privilege and/or production. There’s lots of room for linear review at the end of the day, and the TAR process allows attorneys to dedicate the review budget to the most likely relevant data.

Editor: How do you think Women in e-Discovery has helped female attorneys and e-discovery consultants over the years?

Brennan: I definitely see a trend of women playing more significant roles in the e-discovery aspects of litigation. My experience is that e-discovery requires attention to detail, excellent project management skills, and the ability to collaborate effectively – not only with your client, but also with opposing parties – to develop a sensible e-discovery plan. I won’t say that women are better at those activities than men, but women do bring a very powerful skill set to the table that makes e-discovery a good niche for women attorneys and litigation support staff.

Organizations like Women in e-Discovery provide a forum for women and men to come together to talk about emerging issues in the area of e-discovery and to have candid discussions about practices that are working well and the associated challenges. Women in e-Discovery also provides opportunities for mentoring and leadership that truly have helped propel women forward in the e-discovery arena.

Please email the interviewee at jbrennan@idiscoverysolutions.com with questions about this interview.