Electronic Discovery Tips

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Listen to Stephanie “Tess” Blair, the leader of AmLaw 100 law firm Morgan Lewis & Bockius’ eData team talk about views on the developing field of electronic discovery. Tess is a nationally recognized thought leader in electronic discovery. She is a member of The Sedona Conference® Working Group on eDiscovery, member of ARMA Electronic Discovery Advisory Board, Member, The Electronic Discovery Reference Model Working Group, and a Member of the Editorial Board of the Scientific Council of the Journal of Legal Technology Risk Management. Her practice group, eData, executes “best practices” designed to provide clients with state-of-the-art records and discovery management, knowledge sharing, and collaboration resources. The eData team plays a large role in defending clients in corporate matters, including product liability, mass torts, antitrust, M&A, regulatory, white collar, compliance, construction, insurance coverage, and complex commercial litigation. Tess is based in Philadelphia, Pennsylvania but she maintains a national practice in electronic discovery.

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Karl Schieneman-Interviewer

Tess Blair-Guest

K: Hello everyone, and welcome to another addition of the ESI Bytes Show. The goal of ESI Bytes is to offer an educational content online and podcast free from any sort of vendor pressures, really just to educate people on ESI at a price anyone can afford – which is free. Also, at a price you can afford in terms of your time. You can download these shows when you have time to listen to them. I’m pleased that we have Stephanie “Tess” Blair on the show from Morgan Lewis. Tess, this is your second show with us. We did a three second show earlier, which I started before you got online.

T: I was brilliant!

K: You’re the first repeat guest on the show – congratulations. Anyway, a couple of housekeeping items…I see we have a couple of guests on. If you had questions about e-discovery at the end, you could ask a question by hitting *8 or just post a chat questions and I’m happy to un-mute you and you can ask questions. What we’re going to talk about today is a little bit about some of the issues that Tess sees in e-discovery and I want to introduce your background a little bit. You’ve got a phenomenal background. You’re the leader of the e-data group at the 100 Law Firm, Morgan Lewis involved with all sorts of influential groups – The Sedona Conference, ARMA, the EDRM Model Working Group. You’ve written a chapter in a book that I wrote a chapter in – The E-Discovery Book by PBI that came out in November, which was a nice chapter. And you’ve been on audio broadcasts with me before, with BNA and some of the shows I did there in the past. So Stephanie, I’m glad you’re on…I go between Stephanie and Tess. I’m sure this happens all the time to you.

T: All my friends call me “Tess”, so please feel free.

K: Okay. Well first, let’s start off with your background here. Talk to me about your career. How did you become interested with e-discovery and electronically stored information?

T: Um, sure. I’ve been with Morgan Lewis my entire career. I started as an Associate in our Litigation Practice in the late 90’s. From the very first case I had, there was what we would now call an electronic discovery component, but I don’t think we understood it to be that at the time. So really, from the outside of my career, I’ve been involved in massive litigations involving discovery of a very broad scope. In fact, my very first case was a product liability matter, and it was actually 7 class actions and then scores of individual actions that we were defending. So we had a massive discovery effort in that case. I laugh now because back then 500 boxes of paper was considered massive, and as we all know, one mailbox in a modern case might be paper equivalent of something we considered back in the day. So that’s how I got started. I did form a practice group devoted to electronic records management and electronic discovery back in 2004. This was because we sensed in our practice a real demand and a lack of knowledge in this area. Of course, at the time, the amended federal rules were still a concept and still winding their way through the approval process. We were preparing our clients long before electronic discovery became a formal practice area. 2004, as I mentioned, I started our new practice group, and since that time we’ve grown now to command a workforce of about 150 folks who address all aspects of electronic discovery and records management.

K: We used to joke early on that the only real growth field in e-discovery was the CLE circuit. Now when people go on and talk about this, except for high profile cases, it’s sort of percolating along and I think we’re getting past that point. Why do you think there’s such a challenge presented for lawyers in this field?

T: Well, this is a challenge in a number of ways, but most fundamentally, this is brand new. There’s a new lexicon. This addresses technology, which, at least in my experience many lawyers aren’t technophobic but they don’t see technology perhaps like you and I do now that we see it as kind of the forefront of the discovery process. So there’s a lack of knowledge, there’s a lack of familiarity with the real significant challenges that it presents. I will have frequently run across lawyers who say, “I don’t understand what the big deal is. It’s just discovery, and we’ve all been doing discovery our whole careers,” but this is really something new all together. So there’s that, the fundamental lack of understanding. The other real challenge that it presents for any lawyer practicing is the volume and the cost of discovery, which is exponentially greater than again, what we’re accustomed to when we were practicing in a paper world. And so the volume and cost create a new set of challenges in it of themselves. And then, of course, the risk – the high profile cases that have really put electronic discovery front and center with our clients have driven up the risks. Morgan Stanley Zubulake, and of course, for lawyers QUALCOMM sent shivers down our spines. So, it presents an area of just extraordinary risk combined with lack of knowledge, extraordinary costs, pressures from our clients to bring down the costs, it’s just extraordinarily challenging unlike anything we’ve really seen before.

K: Well, if you’re looking out now into the future – we’re in 2009, where do you see the biggest challenges ahead in this field?

T: The biggest challenges now, now that we’re all acclimated to the fundamental question of, “Do we have to do this?” the answer is, “Yes.” Electronic discovery is here and it’s here to stay. It’s not a fad. I think we’ve gotten over kind of the initial shock of all of it. Now we’re looking for more cost-effective, more efficient ways to manage the volume and the costs. I think that that’s where we’re moving now. Everyone has learned the lesson at Morgan Stanley, Zubulake and other cases where failure to preserve, failure to issue a legal hold and so forth were the real risks. I think that we’re doing a marginally good job there. Now we’re looking at “How can we do better at managing a process that we all agree now we have to do?”

K: Well, if you see a case starting, you start with a client with a problem. Where do you sense clients typically, when they make mistakes in these cases, make their mistakes?

T: The fundamental error is the failure to plan out and think through the discovery process and to make it part of your litigation strategy from day 1 of your case. If you’re going to do electronic discovery on an ad hoc basis, you’re going to pay a premium for that. You’re going to make mistakes, and there’s going to be a lot of wasted effort that could be outcome determinative. So, in my experience, clients who wait until late in the day and put off answering the tough questions about their electronic discovery strategy make incredible errors and waste a lot of time and effort. Failing to bring in the requisite expertise from the very beginning of the case to help you formulate your electronic discovery strategy is a critical error. Not maximizing those precious few opportunities that present themselves, at least to my client base, to take control of the process is another place I think, where my client base at least tends to make mistakes. Now, understand my practice is typically representing Fortune 500 companies typically on the defending end of litigation and typically, frankly, bearing the greatest electronic discovery burdens because they have such enormous storage of data. So, in my view, there are few opportunities for a corporate defendant like a client of mine to really take control of the discovery process, but where they do have those opportunities, a lot of companies are not recognizing them and are not capitalizing on them.

K: You know, litigation as we’re aware is an adversary of the real process and that’s just the nature of it. One side’s gonna win and the other side’s going to lose – that’s the battle. When you’re in an e-discovery fight against an adversary, sometimes you think, “Wow. That person’s good. There an adversary and I’m going up against someone who’s really challenging.” Sometimes you think, “Oh my God, this person’s really just doesn’t get it.” Where do you think adversaries sometimes make the biggest mistake in this area that causes you to think, “Oh my God, this person just doesn’t get it?”

T: Right. Two key areas where I see my opposing counsel making enormous mistakes, first of all, is over-reaching. The days of gamesmanship and overly broad demands are over. The courts, the cases, the commentators, people like me and you who do this for a living, are trying to find a balance between the need for effective discovery and costs. Where your opponent comes in and they want the sun and the moon and the stars – they want all of your servers and all of your email accounts for the whole company – those kinds of demands are going to be rejected by courts. So over-reaching is the first thing I see my opponents making a huge mistake on. The second is opposing parties suffering from the same lack of knowledge that many attorneys on this side of the V suffer from. I have suffered through lots of meetings with plaintiff’s lawyers and again, I tend to think of them as plaintiff’s lawyers, to throw out a lot of technical terms. When I ask them what they mean, they have no idea. They’re following a script where they’ve borrowed a set of interrogatories or document requests from someone else and they don’t understand what they’re asking for. They suffer from those two things. Asking for too much, over-reaching, refusing to compromise, and not understanding what it is they’re asking for and what burdens it places on my clients.

K: Yeah, there’s that recent Judge Facciola decision where they were asking for “staple documents”. It was an interesting one…Now, I’ve written a little bit in this area, but I’m curious what your thoughts are on collaboration. Now, we’ve talked about working with the adversary on trying to be real about what the case is about. Where do you see the issues when you’re working on a multi-disciplinary team? Is collaboration a bigger challenge within in a team or is it working with the other side?

T: It is. I actually think that the need for collaboration is far more real on multi-part teams if you will, where you have outside lawyers, you have in-house lawyers, you have in-house IT people, you have outside technology consultants, you have electronic discovery vendors, you have staffing agencies…there are a lot of moving parts in a typical case today. The need for collaboration is much more important on these teams, frankly, than right now it is with your adversaries. Now I think that there’s an absolute need for better cooperation between the parties in litigation, but I think the real demand for it, its mission critical frankly, on the team that’s managing one party’s discovery efforts.

K: Is your sense at this point, I mean, you’ve been involved with Sedona for awhile, a long time, where that was a very influential “think tank” for those who aren’t familiar, with this area for trying to get information out there for everyone. Do you think we’re at a point now where enough of at least the larger law firms get it, or are we still in the world of experts who have been to a couple of training courses and read a little bit who are perceived experts? It’s still real challenging. Are we getting better here?

T: I think we are getting better. It’s fair to say that as the profession in general has become more comfortable with the concept of electronic discovery. I think we’ve improved our knowledge base. I think Sedona has done remarkable work. I’m excited about the cooperation proclamation that the group has issued, and I think that there’s at least some hope that there will be a more collaborative process between adversaries in litigation to drive down the costs, to better define the scope of discovery, and to get back to the original intent of the discovery process, which is to share the information that’s necessary for the parties to put their cases together. I don’t think we’re there yet. I think that much of the profession still regards discovery as kind of a necessary evil – a place where a lot of gamesmanship still occurs. But it’s clear from the cases and the commentary by a really active bar of judiciary in this area. Not just Judge Facciola but Judge Grimm and a host of other judges who have really gotten out in front of this issue. They demand better cooperation, more collaboration, a better dialogue between the parties. I think that’s what’s going to drive it and we’re going to see better improvement in the coming years as far as agreements on the scope of discovery and the conduct and form of production, and so forth.

K: Now, since we’re still in a field that’s developing and is turned into sometimes…it can be expensive, but cost containment in this era is something I think everyone’s talking about. Are there any strategies you can think of to reduce costs in this area that seem like they might be helpful?

T: Well, there are a number of strategies out there and I have opinions on the efficacy of a lot of them. We’ve heard; for example, talk over the last several years of off-shoring or legal process outsourcing. That addresses the labor issue. Do we want to pay contract domestic contract attorneys, or law firm associates versus, perhaps, lower cost legal professionals and others offshore – India, the Philippines, where have you, to do this work? I think that only gets us part of the way there and I actually don’t think that l.p.o. has gotten traction that I think its proponents had hoped for. I think there’s still a lot of reluctance to do that. I also don’t think it solves the problem. The problem with electronic discovery, particularly in this environment where we’re looking to reduce costs, is the problem of volume. Even if you’re paying a substantially less per hour for attorneys to review document, if you’re still looking at terabytes of documents, you’re still going to sustain a significant cost. So, I’m optimistic that some of the new technologies, the new approaches, the new cases that have come out that go to the haunt of the problem of volume, I think are really going to have an impact on cost. So, I’m optimistic about that. Also, I think that the move away from the billable hours for document review is critically important in giving our clients the transparency and the certainty that they need in managing their budgets and reducing their legal spending in this area. My firm, for one, is moving away from hourly billing. We’re doing all-in pricing for our discovery work so that they get one bill and they’re told upfront what it’s going to be when a discovery project is launched. Those two pieces are much more important than some of these other band-aid type approaches like l.p.o.

K: Well, also thanks for some of the good ideas on future shows. Those topics are well-worth shows completely in their own right. In terms of educating, we did a really nice show earlier in the week with Judge Facciola and a solo practitioner. He’s deeply concerned about the lack of knowledge throughout the legal profession. Do you think that this is something that law schools should jump in and start teaching people, students, early on about this area instead of waiting for them to become practicing attorneys?

T: I actually do. I think that more practical lawyering needs to be taught in law schools about the discovery process. I think that some law schools do a better job than others. I know we have some programs in the local area Philadelphia area that teach electronic discovery and discovery generally to young would-be lawyers. We have some lawyers in our firm who did take those courses and it’s clear to me that they’re much more comfortable with the process and understanding their role in it because, let’s face it, in a Am Law 100 Firm it’s usually the very young associates who are tasked with the primary responsibility for discovery. In my practice, working with you associates who have had that kind of course work is a much less challenging process for us than it is for associates who are not familiar with it. So I think that the schools could do a better job at that, but I also think that lawyers – anyone who litigates, has to become familiar with the amended federal rules and have to educate themselves, whether taking CLE courses or doing some reading. We all need to become better educated.

K: Well, that’s fantastic. I appreciate you joining us on the show. I want to let everyone know that in about 3 weeks, we’ll have the website up, www.esibytes.com where the show will be housed and we’ll have a link back to a bio page on Tess and her practice area. Thank you for joining us. I hope you can join us on future shows.

T: Karl thanks for having me.

K: Is there anything else you want to add about the field? I think you provided a real nice general overview to where we are right now…like a balance sheet.

T: Well, I’m happy to talk further about any of the issues that I raised today.

K: Okay, great! Thanks a lot.

Recorded 03/06/2009

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