Reaching Common Ground on E-Discovery: Closing the perception gap between inside and outside counsel drives better results

When an in-house legal team works with outside counsel, there is often a disconnect between technology and e-discovery. In-house counsel perceives outside counsel as unnecessarily expansive, while outside counsel perceives the in-house team as overly targeted and budget-focused. Laura Kibbe of RVM Enterprises, who has experience on both sides, discusses how inside and outside counsel can better work together and how enhanced communication can drive technology adoption. Her remarks have been edited for length and style.

MCC: Please tell us about your background and how you got to RVM.

Kibbe: I’ve been an attorney for almost 25 years. I started in-house at Texaco in the litigation group at their White Plains headquarters. When that group moved to Houston, I joined Kaye Scholer. I worked on discovery on a small matter, and then led discovery on Pfizer’s Rezulin product withdrawal. We produced more than 9 million documents. I became Pfizer’s national discovery counsel and eventually joined Pfizer to build the global discovery and information governance platforms. From there, I joined Epiq Systems as a managing director to build their professional services practice, which eventually led me to RVM and my current role.

MCC: How can corporate law departments best work with outside counsel in this area and close the gap?

Kibbe: I was setting up roundtable sessions with key outside counsel with responsibility for discovery at Pfizer so they could truly understand the business of the corporation and pressures facing in-house counsel. I wanted them to see how litigation needs to be treated like any other business risk. That helped us get on the same page for fact development. For example, scorched earth discovery may seem totally appropriate in an outside counsel’s eyes, but in light of everything else going on inside a corporation, including all other litigation, a more targeted approach might be appropriate.

From what I can tell, the conflict is not really a true conflict. It’s just two ships passing in the night. One doesn’t really understand where the other is coming from. Inside counsel thinks outside counsel wants to leave no stone unturned. Outside counsel thinks all inside counsel is worried about is the budget. There is a happy medium where both can best serve the business.

MCC: What is technology’s role and to what extent can corporate law departments rely on it?

Kibbe: There are a lot of advanced analytic tools that can help make the discovery process far more cost-effective than ever before. It’ll never be cheap, but it can be a whole lot less costly. Early on, scary buzzwords like “predictive coding” and “technology-assisted review” made a lot of lawyers nervous. It wasn’t proven technology. Today, those analytic tools are tested and reliable. Like anything else in litigation, it comes down to process.

That’s where outside counsel struggles. They’re not familiar with the process. Even if they’ve accepted the technology as mainstream, they’ve never used it and it’s a whole new process to understand. As officers of the court, outside counsel are the ones standing in the courtroom, and they’re concerned about jumping in with both feet. That’s where in-house counsel can help. “Hey, we’ve done it,” they can say. “We know our business’s information. Here is a process that works for us.” That’s the happy medium. The good news is that in discovery, like anything else in litigation, the standard is reasonableness. It’s not perfection.

I just did a side-by-side comparison on a 100,000-document case, and I would have wound up reviewing all 100,000 documents if I didn’t apply analytics. If you apply even simple, uncontroversial analytic tools like email threading and near deduplication and review only the unique email threads and attachments, you can easily cut out a substantial amount of your population, in this case 30,000. That’s 30,000 less documents to review. By applying additional analytics like predictive coding or technology-assisted review, we brought that down to less than half of the original 100,000 documents. There is no defensibility concern. You’ve reviewed all of the relevant content by only looking at 50 percent of the documents. That’s the nice thing about analytics. It allows you to be more consistent, while at the same time being more cost-effective.

MCC: To what extent do outside counsel need to prove they understand technology such as predictive coding? How can they influence the decisions being made so in-house counsel is confident the review is highly optimized?

Kibbe: The challenge for outside counsel is that even the biggest firms are competing for the large corporate litigation business. You want to make sure if you’re outside counsel that you have someone on the legal team that can sit and talk very knowledgeably with the in-house counsel or discovery team about that strategy. It doesn’t have to be your lead trial lawyer, but you need someone there who can play that translation role.

I have seen several examples of firms with phenomenal trial lawyers who aren’t able to handle what we refer to as the back office – the discovery work. They don’t approach it as strategically as trial strategy, and consequently they lose the work. Instead, it goes to a firm that can provide end-to-end capabilities. They’ve put together a group of professionals that have all the skills and expertise needed to handle the entire matter. It’s wonderful if they’re all in the same firm. Corporations are going into a lot of these outside counsel rationalization programs looking to make sure that the expertise is at the table regardless of whether it comes from one or multiple firms.

MCC: The changes to the Federal Rules of Civil Procedure went into effect on December 1. What are you seeing as far as the impact on e-discovery?

Kibbe: For the most part, all of the amendments, as they relate to discovery, pretty much codified what most of us practitioners had been referring to as best practices anyway. For example, in the changes to Rule 37e, the outline for a defensible, reasonable – although not perfect – process, is reflected in the new sanctions standard. Counsel will often say to their clients, “You know, we don’t have to be perfect. As long as we can demonstrate that we’re reasonable, sanctions will probably not be draconian.” I think that that’s what 37e does. All of the cooperation and transparency principles espoused by groups like The Sedona Conference are codified in the cooperation and meet-and-confer requirements. Pushing discussion and making the plan for discovery earlier in the conversation forces counsel to think more about process. Again, it’s really a codification of best practices. I haven’t seen anything revolutionary or shocking as far as decisions under the new federal rules.

MCC: Is there anything we’ve missed in terms of what inside counsel should know about working with outside counsel or service providers – how they can better work together?

Kibbe: As I said at the beginning, I think the biggest thing in-house counsel can do is have the discussion. A lot of people don’t want to spend time talking about the technology. In some cases, we went to law school to avoid math and technology in general. So at the beginning of the case, spending that time to make sure you’re on the same page about how the company wants to approach discovery will be time well spent. You’ll build confidence and trust in one another, which will increase your outside counsel’s willingness to take advantage of new technologies as they emerge in the marketplace.

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