Making E-Discovery a Win-Win-Winning Proposition: Inventus and Hilgers Graben drive down costs without risking results

Thursday, March 3, 2016 - 16:57

Effective collaboration, smooth communication and rock-solid trust are at the heart of the partnership between the innovative litigation boutique Hilgers Graben and Inventus, a leading discovery management firm. Below, the key players in this relationship discuss their work together: Mike Hilgers, name partner of Hilgers Graben and a seasoned trial lawyer who serves as lead and local counsel to large and sophisticated clients; Carrie Dolton, a Hilgers Graben litigator with deep experience in all aspects of e-discovery; Sterling Miller, who joined Hilgers Graben after serving as GC of Sabre Corporation and Travelocity; Andrew Bayer, of Inventus, who focuses on the development and deployment of e-discovery management protocols; and Ed Fiducia, also of Inventus, who works with corporate law departments and their outside counsel to analyze their e-discovery workflows, improve processes and reduce costs. Their remarks have been edited for length and style.


MCC: Each of you brings an interesting background to your work. Please take a minute to highlight the key aspects of your experience as they relate to your work together. 


Hilgers: The members of the Inventus–Hilgers Graben team complement one another’s talent and experience, forming an overall unit that is greater than the sum of its parts. From the Hilgers Graben side, Sterling, Carrie and myself are trying to add value for our clients by performing a really effective document review done the way that it ought to be done. If you think about the critical role that documents play in a trial, they can make or break your defense or a plaintiff’s case. Putting costs aside for a second, ideally you want your review to be as helpful and valuable to the trial team as it absolutely can be. There is value in having the trial team very close to the review. Because of cost, that review more and more has been segregated to outside vendors, and the more you segregate, the further you get away from the trial team. What we try to do is get all the cost advantages of an outside vendor team but maintain the substantive value of having a group of trial lawyers reviewing documents.

Our experience fits into that. I’ve been first chair on a number of trials and have been part of trial teams on a number of big and high-stakes cases. Sterling, who has been a general counsel for decades, has been through a number of trials, has seen what good trial practice looks like from the in-house viewpoint and knows what trial teams need. That experience helps guide us throughout the review process. That’s really valuable and distinguishes us from other groups. 

At the same time, Carrie is a lynchpin because of her background in leading many of these reviews. She knows what good trial work looks like, helps manage the reviewers, and knows Inventus and their systems well. She works hand in glove with Sterling and myself. Our three skill sets and backgrounds mesh well for what we are trying to do, which is provide a high-quality substantive review. 

The other part of it is the cost side. This is where Sterling’s background really helps us. He has sat on some big cases with a lot of money at stake. We are constantly asking his advice on how we can continuously improve what we are giving to the client. What we get from Sterling is priceless, not just on the cost side but in how we are communicating, in how transparent we are, in the metrics we provide. The Inventus team augments everything I just said, making things more transparent to the client and more cost-effective. They help us help the trial team.


Bayer: That’s a good segue to where Inventus sits in this relationship. We make sure that Hilgers Graben has technology that ensures access to the responsive documents that are substantive to their review and to their trial efforts in a way that cuts out as much of the noise up front as possible. In the review world, cutting out that noise equates to cutting out costs. Our proprietary workflows and technology-enabled solutions help Hilgers Graben deliver value-driven results for their clients. It is that natural fit between a very efficient review and trial process from Hilgers Graben and the state-of-the-art, forward-thinking technology processes that Inventus brings to this relationship.


Fiducia: For me, from the Inventus side, having been doing this for more than 20 years and watching the technology change from paper-based Post-it note flags to very basic flat-file computer databases to computers that do intelligent learning and are able to handle very large data sets, the issues that the lawyers face are the same issues as they faced 20 years ago. When we get all of the documents from our client, chances are that 99 percent of what we’ve collected is stuff the attorneys don’t need. Therefore, the million-dollar question is: “How do I find the 1 percent or half of a percent that is important to me, my client and the case at hand?” Having been through all of these different processes and software platforms and technologies, my advice to clients is, “Let’s find ways to identify what we need at the very beginning of the document review.” That will help us carve out and eliminate the stuff that is, for all intents and purposes, useless to us. That sounds great on the surface, but there are traps in that process because it has to be done in a very defensible manner or it comes back to bite you at trial. That’s what we bring to the table, and that’s how Inventus has helped Mike and his Hilgers Graben team. How can we provide our clients with the most cost-effective review while giving the attorneys the tools they need to do the best job they can? 


Miller: We always keep in mind what’s going to help the in-house lawyers and what’s going to make them look good. The litigation process is very complex. Most business people don’t understand it. They just know it is there, and they know it is costly. We help in-house lawyers go back to their business people with tangible data that shows what we are doing, what it costs, why this is market rate (or, we hope, below market rate). We make them comfortable with what’s going on so they can make their executives comfortable. 


MCC: Please tell us how such a talented and disparate group came together to pursue a common interest in driving down the costs and the risks of high-stakes litigation.


Hilgers: There is a Nebraska connection between all of us. I grew up in Nebraska, practiced in Dallas at Fish & Richardson for several years and got to know Sterling, who was a client and was originally from Nebraska. When I moved back to Nebraska to start Gober Hilgers, which has since become Hilgers Graben, five years ago, Sterling stayed in Dallas. Carrie worked at DLA Piper in San Diego doing a lot of complex litigation work, and she had recently come home to Nebraska. Her background was tremendous and fit exactly with what we are trying to do – provide high-level legal services to clients at a much better value than at big firms. That’s how the Hilgers Graben team came together.

Going from Hilgers Graben to Inventus, Ed and I worked together on one of the most challenging, if not the most challenging, projects I’ve ever worked on. It was an incredibly high-stakes case. The client had worked with Ed and his team before, but it was the first time we worked with Inventus. They were fantastic. We loved their software. We loved their operations team. Ed took great care of us. We’ve done several projects now.


Fiducia: That was a monster high-stakes project, very visible, for a well-known company. As a service provider working with outside counsel, I was just blown away that there was this boutique firm in Nebraska that was not only working with this major client but, by the way, they worked hand-in-glove with the Inventus project management team. That’s something we are really proud of at Inventus, the way our project managers work so closely with our clients.

As that case started to wrap, I picked up the phone, called Mike, and told him how much I liked the way we worked together. So we looked for other opportunities. It’s been a great relationship. We are in the middle of a new project, and it’s exciting to watch the email traffic between Carrie and our project manager and just how closely the two of them are working together. 


Dolton: Working with Inventus has been fantastic. Their overall professionalism is first-rate. The constant communication and responsiveness that they provide has been essential for us. No question is too small for them, and no request has ever been too big. They’ve taken the time to teach us to how to leverage the tools they offer to maximize efficiencies in collection, processing, review and, ultimately, production. We’ve learned the best ways to cut through large amounts of data in an expeditious manner and always have that laser focus on the key aspects of the litigation for use by the trial team. 


Bayer: Carrie, and Hilgers Graben as a firm, have been more proactive than any client in my last 10 years working in this space. They take the time to understand not just the standard, out-of-the-box technology offerings in the Relativity platform but the more advanced techniques within Relativity and the proprietary workflows and applications that Inventus uses to drive down review costs. It’s safe to say that Hilgers Graben will be the gold standard upon which others are judged as far as effectively using our Luminosity technology. 


MCC: All of you have worked on major investigations and highly complex litigation requiring an extensive review and analysis of data. Tell us a little more about how your firms collaborate not only to contain but to drive down litigation costs without sacrificing the positive outcomes you achieve for your clients.


Dolton: We work very closely together to learn the tools that Inventus offers and to figure out how and when to use those tools. We don’t cut corners or sacrifice outcomes. We efficiently slice through the data and figure out how to best organize it for our reviewers and ultimately the trial team. I can’t imagine doing a document review without the proprietary tools that Inventus has developed to review the information and highlight key documents in a very fast and efficient manner.


Fiducia: It’s not just the culling of the data and eliminating documents that I don’t need to look at. It is really drilling into the data set with some very targeted search and sorting criteria. For example, we can sit down with Carrie and target potentially privileged information by looking at all the variables that may or may not make a document privileged. From that data set, we can pull out a bucket of potentially privileged information. By doing it in that targeted way, the attorneys are not going to be looking at stuff that is not likely to be privileged. That dovetails with our ability to repurpose that work product across multiple matters. So if a corporate client engages a firm and they review 100,000 privilege documents, and that client is later involved in a completely different piece of litigation with a common document pool, we can carry that work product forward into the second, third, fourth and fifth cases. That’s a huge cost savings. 


MCC: Please describe, generically if needed, a recent matter on which you have collaborated and how you shaped the project to ensure that you would meet your client’s needs. What stands out for you about this project?


Bayer: Generically speaking, there is one that we are in the midst of right now; Carrie has been working tirelessly on it. It is the quintessential case where we know there likely is not much information relevant to the matter at hand, but in an effort to remain as defensible as possible from a preservation effort, a wide net was cast. What Carrie and her team have been doing is hone in on ways to eliminate a lot of the data that was preserved but doesn’t need to be looked at from a responsiveness perspective. In their first attempt at culling information, they’ve achieved a more than 50 percent data reduction rate, and we expect to take that to maybe 70 or 80 percent. Those figures, which came out yesterday, show how effective they’ve been at using Inventus’ technologies. 


Hilgers: This is a recent case in which a court ordered the client to turn around certain huge amounts of data in a short period of time. Without Inventus’ tools, we would have to review gigantic data sets. There are ways you could do that – you could hire more people – but you lower the quality, and the costs are astronomically higher. We are able to winnow down the data set to what we need to put eyes on. We can meet the court’s deadline in a higher quality manner for less cost. It is win, win, win for everyone on this side.


MCC: Our readers, general counsel and senior in-house counsel, are in an endless battle to contain litigation costs that continue to spiral higher due to the explosion of data. How do you advise in-house counsel who are under pressure from their boards and CFOs to control costs without heightening the risk for their companies?


Miller: Having sat very recently in that GC chair, I know those conversations very well. There are three things that stand out. First, you need to have the data so you understand what you are paying and how that compares to some reasonable benchmarks. It is very reassuring to the senior management if you can go in with numbers because that’s their language. That allows you to start figuring out what things should cost and how you drive the process to that area or below, if you can. 

That raises the second point, which is always a challenge for in-house lawyers. You don’t want to overpay for the brand name of a law firm. That’s a real tension because sometimes the board, or the C-suite, insists you use certain firms, even though that’s 30, 40, even 50 percent more than you truly have to spend. We strive to convince our clients that it’s the same type of lawyer but a lot less expensive. 

The last thing is important for any engagement of any material size. You need to have a very honest discussion between in-house and outside counsel about the scope of the project and the expected cost, and you need to make sure you keep that communication going on a regular basis. You don’t want to get two or three months in, and then the first bill comes and you say, “Wow, I wasn’t expecting it to cost that much.” If you bring in the e-discovery vendors on the front end, you can capture those concerns much earlier. You will be happier at the end. 


Bayer: Predictability around costs is something that attorneys have been dealing with since at least 2008, and the concept of alternative fee arrangements has really caught on. GCs, like Sterling was, want to know what they are in for before hiring an organization to manage a case. That has trickled down to the e-discovery providers. More and more we are building out predictable, flat-fee-model pricing so the GCs have that for their CFOs and boards. On top of that, Inventus has released a new feature – a data analytics dashboard – that reports on what’s been spent to date. More importantly, it tracks the cost savings a firm like Hilgers Graben is achieving through the use of Inventus’ proprietary solutions. We are well-versed in addressing the needs that Sterling expressed, and we are taking measured steps to make sure we have the technology to support that.


MCC: What’s the key to a successful collaboration between a highly focused outside consultant, such as Inventus, and a team of lawyers working to serve a corporate client in a variety of ways? Is there a magic formula?


Fiducia: Having a constant level of communication between the attorneys, the corporate client and our project managers, who are a real point of pride at Inventus. Our PMs are attorneys, paralegals and others who have worked in litigation and in Big Law. They understand the needs and send emails day and night. That level of communication is a big part of that magic formula.


Miller: I would only add one thing: Don’t forget to pick up the phone and talk to someone. The emails and texts are good, but you can get a better sense of what the issues are, make your point and get direction quickly on a call. Communication and how you communicate is the magic formula.


Hilgers: I would add one other word: “trust.” It is absolutely critical that you trust your working partner. Having done several of these reviews now with Inventus, we have complete trust in the work product they produce.
We know that we are working toward a common goal, which is the best thing for the client at the lowest
cost possible. 


Bayer: Results speak for themselves. Our ability to deliver incredible legal advice and winning cases at great value – containing costs and efficiently leveraging technology –  speaks volumes in this results-oriented business. As we grow and go through more together, the results will just continue to get better.


Michael Hilgers, Partner of Hilgers Graben

Carrie Dolton, Counsel at Hilgers Graben PLLC, concentrating on complex commercial litigation and regulatory investigations, and a member of its e-discovery team.

Sterling Miller, Senior counsel at Hilgers Graben PLLC, focusing on complex litigation, data privacy and internal investigations.

Andrew Bayer, Managing shareholder, Southern California, at Inventus,

Ed Fiducia, Regional vice president and senior e-discovery consultant at Inventus,