Robin Perkins on Founding NeLI and Keeping eDiscovery Education Practical

Well, thank you, Brandon. Thank you, Daniel. It's a pleasure. It's an honor to be here and to be doing this podcast with you. The National eDiscovery Leadership Institute that we call NeLI has something that I started about 10 years ago. I went to an eDiscovery conference in Boston in Judge Shira Shinlin back when she was on the bench and was a little bit terrifying to me. It was one of the speakers along with some other judges. And it was really well done. And I learned a lot and I thought, well, if they can do this, why can't we do this in Kansas City? And so I just had a lot of contacts. I've been practicing law since 2001. And about two years after I started practicing law, I was put on a big case with a bunch of multi-district litigations and class actions.

And DOJ was involved. And I was a very new associate and got thrown into handling all of the discovery. And so I had to learn. I learned by the seat of my pants and I just had a passion for it. And I've been practicing an eDiscovery now for almost 20 years. So I know a lot of people. And I thought, well, if they can do this in Boston, why can't we do this in Kansas City? And I just picked up the phone and started calling folks. And Judge Shinlin was one that I actually called and it just so happened. Her best friend lived in Kansas City because she just doesn't go to any conference. And she agreed to come. And from there, NeLI started. Judge, retired Judge Peck, Andrew Peck from Southern District, New York has been at every single NeLI conference since his creation.

And we've just grew. But one of the things we love to do is to provide really great content for the attorneys. We have vendor sponsors, but it's not a technology conference. It's really geared towards attorneys. And we strive to get the very best speakers that are entertaining, engaging and provide cutting edge discussions on what's going on in the legal space regarding eDiscovery.

Maybe I'm just weird. I don't, you know, I like making connections. I enjoy networking. I am of the belief that everybody is good. And so you prove me otherwise. I'm a very trusting person and I see the good in both sides. I see the good in judges, plaintiffs, lawyers, defense lawyers, government lawyers. And I really enjoy getting to know people, what drives people and working together and collaborating. And I thought there's nothing like this in the Midwest, but I didn't want to limit it to the Midwest. I wanted to make it national. My main goal was how do we further this area of law? How do we advance it? Similar to Sedona, I'm very actively involved in the Sedona conference. I'm involved in EDRM. You know, I teach eDiscovery at the law school.

You know, I have my hands in a lot of different pots, so I get to know a lot of people. And there's so many great people in this space. you know, maybe more so than any other area of law, I have found that there's a real genuine desire to educate. You know, technology is constantly changing. I learn something new almost every single day and I do this for a living. You know, this is my bread and butter. This is really my, I'm still a commercial litigator. Occasionally we'll try cases, but my main thing is heading up the Discovery Practice Group at Kutak Rock and I'm still learning. So for those that aren't doing this day in and day out, there's just no way. You know, you don't know what you don't know.

Now that you discovery attorneys, you know, there's a handful of us now, I have found really, for the most part, have a passion and a desire to educate and to help others learn this space. Because we're all learning. We're all learning every single day because it's just with the world of technology, everything's changing daily, it seems.

So the biggest challenge is those who think they know it all. You know, typically the older partners, sometimes even the younger ones who think they were raised, you know, understanding technology and that they don't need to engage in eDiscovery professional. Because again, you don't, I can't say it enough, you don't know what you don't know. You might think you know until somebody raises, you know, a situation and you're like, oh, I didn't think of that, but sometimes it's too late. You know, sometimes they've already agreed to an ESI protocol, which is very burdensome for them to comply with. Maybe they need to produce a legal hold notice that they sent out from their legal departments and now there's the issue of waving privilege to that because they were just taught, you know, that it always comes from the legal department and now what do you do?

You want to produce it to show that you didn't, or that you took reasonable steps to preserve data. I mean, do you just, modern attachments, you know, the links and documents, folks don't always think about the challenges when hashing out ESI protocols. Redaction, you know, here's the big one that people don't talk about enough is you're working on an ESI protocol. Well, can you redact information that might be sensitive that's in a responsive document? You know, typically you don't negotiate that type of language in an ESI protocol and so you're not able to redact information that unless it's privileged, you're not able to redact for relevancy in a responsive document. What about withholding responsive attachments? Can you do it? Should you do it? Do you want to do it?

Is it too much work to have to do it? Do you have to put it on a log? If you are doing it, you know, just thinking through all of those things, but I found both my current firm and former firms that everyone thinks they've handled discovery since the beginning of time, you know, back when it was paper. And so what's the big deal? You know, it's still just discovery and while that's true, it is still discovery dealing with electronic data is so nuanced and there's so much more that goes into it than just dealing with paper. A lot of these topics that you're talking about, these are things that have actually been addressed before at previous conferences, I've been to them and so I've heard this.

One of the things that I find interesting is that your comment that, well, I've just been doing discovery since it was discovery, right? But it's not, right? All of these nuances. This is part of our obligation as lawyers, right? So Brandon being a lawyer, I'm a lawyer, you're a lawyer, right? This is our obligation. Brandon and I act in the capacity as a non-lawyer, but yet you're still ethically bound to make sure that we are doing the right thing and that comes from the world's professional responsibility. Rule 1.1, Comment 8 says that you would need to be competent and understand the relevant risks and benefits of technology. Under Rule 5.3(b), you have to make sure that non-lawyers are doing what they should be doing under the laws and all the regulations, all the appropriate statutes.

That's not an easy thing. I think for an attorney who's been practicing for 25, 30 years, he used to just call it discovery and work in exchange, a bunch of paper. How does that NeLI conference really kind of bring that home to help educate others, right? In the spirit of education, educate others to raise that level of competency. So I'm glad you asked, and before I answer that question, let me just say that you don't have to be an expert in electronic discovery, but you have to align yourself with someone who is to meet your ethical obligations and under the professional rules. I don't expect in order, do I think judges would expect every single person in a firm to know as much as you and I do who deal in eDiscovery every single day.

But the key is realizing your limitations. You might be the very best anti-trust lawyer and the very best trial attorney. That is your lane. You know, it's fine to stay in your lane, but you need to engage someone whose lane is eDiscovery and who understands eDiscovery and can help guide you through that process. So you need to know enough to know you don't know. certain things and that you need to align yourself with the appropriate eDiscovery experts. Regarding Nali, I have attended many, many, many conferences. What I would do is I would pick and choose the things that I liked the best from each conference all the way down to the seating arrangements, to what snacks they would give during the break. Literally, everything you can think of, what food did they serve for lunch?

Did they provide dinner? What kind of cocktails are they serving? What got my attention as far as the content? I am not one who likes to just sit for an entire day and listen to a panel after a panel after a panel. They can be the very best speakers. They could have great content, but it's a long day and I start to get tired or bored. Let's just say what it is. We all get a little bored if they spit we're there because we need CLE credit or it looks good or we can network. I thought, how can I make this conference more engaging? I enlisted a committee. I've got a committee of really well-respected eDiscovery attorneys on my committee that helped me with this, but we do mock hearings.

We have judges rule in the court, the jurisdiction of Nali. We don't know what each other is going to say. We know some basic facts. I don't know what argument my opposing counsel is going to make. He doesn't know what argument I'm going to make. We don't know how the judge is going to rule. It's as real life as you can possibly get. We have mock negotiations. We'll have a plaintiff's lawyer and a defense lawyer negotiate an ESI protocol or negotiate a privilege log or negotiate tar validation. We mix it up every year because we don't repeat the same step every single year, but we try to keep it super entertaining, super engaging. I stole a little bit from Ted Talk. Don't you guys tell him on me, but we call it Nali Talk.

It's 20 minutes, not 15 minutes. And it's a real 20-minute session. We have a few of them sprinkled out that's where we sometimes will bring in the technology aspect. A lot of our vendor sponsors will talk about things, not sales pitchy. Again, this is geared for attorneys, but things like forensic collection. What can you get when you forensically collect a mobile device? Can you tell where somebody was when they posted that photo? The behind the scenes stuff, really entertaining. We might talk about technology assisted review briefly, not long enough to make anyone want to poke their eyes out, but enough to get them excited about a document review. It's just really fun cutting edge topics, short, just tidbits, 20 minutes long. And it's been very well received.

In addition to our role playing, and we have a couple panels, sometimes still an in-house council panel that everyone loves, a judges panel. So here's an example. We did this last year. We're going to do it again this year, September 19th and 20th. Let's remind everyone at the end of this again. September 19th and 20th is the NeLI Conference for 2024. We have a judges panel each day. One of the days, the judges are role playing and doing mock hearings. We make the judges do the work. We give them a topic and one judge will argue one site, for example, last year was redactions. Can we redact within a responsive document? Can you withhold non-responsive documents if it's part of a family that has a member that's responsive?

Had one judge argue one site and another judge argue the other site and the audience gets to choose the winner. So in the next day, we had a case law update with the judicial panel. Again, wildly popular, fun, entertaining, will not put you to sleep. Let me just give a little plug here if you don't mind. Please attend NeLI. September 19th and 20th is a two-day conference. If you're traveling, we end early enough in the afternoon that regardless of which coast you might live on, you're able to fly home if you want, where you can stay an extra night and enjoy Kansas City. We provide all of your meals, breakfast, lunch, dinner, cocktails, great snacks. And it's free. In-person attendance is free. And we get sealed wherever you need to leave.

It doesn't matter which jurisdiction. When you apply or not apply, I'm sorry, when you register at ediscoveryleadership.org, there's a place where you can indicate which states you need CLE for, and we will apply for CLE on your behalf. Fantastic sales pitch. I don't know if I answered your question. I don't even remember your question now. There was a lot of answer there. But fantastic sales pitch for the conference itself. And it sounds like the presentation, the engagement that you have at NeLI is what really separates it from other conferences that are out there. And I think we all understand that the conference world and eDiscovery kind of has a glut of conferences that are out there, but they're all very different and they sound very different from the way in which NeLI presents information.

But I do want to talk about the specific information. When you think forward to this year, next year, what do you think are the most cutting edge areas of eDiscovery that you feel are going to be the most... important and the most engaging to practitioners who might attend this year's conference. If I understand your question, and just so the audience knows, I've not seen these questions, so listen, I'm shooting from the hip. Mobile devices tend to give me the biggest headache. It seems like Apple is constantly changing the way that someone can even collect data from an Apple device, androids, same thing. There's things that we haven't even thought of. Who would have ever thought even just four or five years ago that you could read a text message or take a phone call from a watch?

There's so much that I don't even know. Again, they are knowing. We don't know what we don't know. I don't know that I have a great answer for that because there's technology, AI. AI is a big thing right now. How do we implement AI with document review? It's something that's a whole new thing different than continuous active learning or technology assisted review. We're starting to see AI summarizing documents, and how do we utilize that so that we can get through documents quicker, more cost effective, and more efficiently, but also more accurately than traditional document review? Again, Brandon, I wish I knew the answer to that, but I've got to think AI and issues with mobile devices, modern attachments with links within documents still give me issues.

Collaboration tools are another sticking point that we're all still trying to figure out because a lot of developers, even on construction cases, they all start using these collaboration tools and, well, who's the custodian? Who is the custodian and how are they being preserved and are they being preserved? Informal messaging is still a sticky situation with the disappearing messages. I'll get on my soapbox a little bit, but I don't think because somebody uses informal messaging that's necessarily a bad thing. Everyone looks at it as, well, they're doing something nefarious. I disagree with that. There's lots of reasons that one may want to legitimate reasons why one may want to communicate with the formal messaging. For those that don't know what that means, it's disappearing messages similar to Snapchat.

With data security continuing to be such an issue and a hot topic, if you don't have the data, it can't be breached. So companies may want to move towards that type of messaging platform. It's not much different than a telephone call, I would argue. But yeah, folks, look at this as volation if you're communicating that way. So I'm glad you gave the disclaimer at the beginning that this is just my opinion. It's not necessarily the opinion of Kutak Rock or other members on my committee at Nali, but I foresee that there's going to be additional opinions and the law will evolve and develop in that regard. And one of those happens to be in Ray-Uber Technologies just decided April 23rd and talking about modern attachments.

And I think that is something for sure that is going to come up. I'm sure it's going to come up. I'd love to see the judges argue. The judge's opinion in that particular case, I thought was great. Finally, finding some sort of reasonableness around modern attachments. I encourage people to go ahead and take a look at that case.

Great question. My main goal is when they leave, they have practical tips and advice that they can implement immediately. But it's not just a theory type session. It's not so high level that it's not really practical. I want them to leave the conference and immediately be able to use what they learned in the tools in their practice the very next day. I also want them to have a fun time. I want it to be entertaining. I want it to be enjoyable because if it's not, people get bored and they don't want to come back. I want it to be considered as a very high quality conference that we take very, very seriously. We encourage everyone to complete an evaluation of the speakers, of the content, of the food, everything, the room, all of it.

We have some limitations with what we can do, but if we can change something to make it better, we do that. We're always looking for ways to improve. We will never stop growing, learning, trying to improve it. Here's another example. Well, how do we get everybody back in their seats? So we record it. So NeLI is offered in-person, free, well, well worth it. I think we had people from 15 different states travel to attend NeLI in-person that weren't just speakers, like actual audience members. Well, worth it to attend in-person. We also, if you can't travel to Kansas City and you still want to attend, we also offer it remotely. Live video stream that day. You can ask questions online. You can type it out and we'd at the end of each session, if time permits, sometimes the sessions run long, we don't have time for questions.

But if we do, we look and see what questions that come in from our remote attendees as well. I don't know many conferences that do that. We also record each session. So if somebody wants to get CLE credit and they only need an hour or so and they're interested in the judges panel, you know, they can download and listen to just that session. I'm lost now because they don't remember what your question was exactly by the mission. The mission. Yes, the mission. So people are going to walk away with actionable steps that they can implement the very next day.

The first call I made was to UMKC because we reimbursed judges for their travel expense will reimburse in-house counsel for travel expense and government attorneys. Judges cannot be reimbursed from my law firm, Cutuck Rock. So we had to find a good partner that could help. And I have a full-time practice. You know, I'm still a practicing attorney, so I can't handle all the logistics of everything. I help get speakers and content. But UMKC has been a great partner. They handle the room, the website, the financial aspect of it. You know, they handle all the money. They make sure all the speakers are paid. We have a sponsors dinner the evening before the conference. We have a dinner for everyone. Here's another thing I know conferences don't do, except NeLI, is for every single in-person attendee at the end of the first day, we provide dinner.

Come have cocktails. I met you, Brandon, at last year's cocktail reception and then sit down and have dinner with us. Again, no charge to the attendees. So UMKC handles all of that. As far as a committee to help me, we've got, like I mentioned, Ed Rippey is with Covington-Berling. He's chamber's-rated eDiscovery lawyer. We have Leah Bays, who is a well-known plaintiff's attorney, and handles eDiscovery. We've got Tessa Jacobs. She's at Hush Blackwell. We have John Papas, who brings knowledge from the vendor side of things. He's been at different eDiscovery service provider companies. And now we have Daniel Gold, who's just recently joined within the last month. Daniel, you're helping with the podcast aspect, which I'm thrilled about somebody actually doing a podcast on NeLI and eDiscovery in the social media, where we've lacked in some of our marketing and outreach is on these social media platforms.

And you just helped me with my farm page. So you are the social media guru. So happy that you're going to start. It's easy to celebrate something, I'll call it, when you truly believe in it. And I think that was the calling that I think that. That's why I picked up the phone. I called you and I said, hey, I've got this crazy idea.

Like all of a sudden, it's eDiscovery, eDiscovery. And now you have a whole lot of little ills. So I would rather talk about the farm than eDiscovery on a day. A year ago, if you asked me if I was going to have a farm, I would just ignore your cra- because I'm a city girl. But my husband from North Carolina, he was raised on a horse farm. He is in the army and retiring in less than two years and kind of thinking about what was he gonna do in his next life. So we bought 30 acres in Tonganoxie and we call it a farm. I'm a word person. Technically it's a ranch because it's with animals and not crops. But Old MacDonald like screwed everybody up with the Old MacDonald song.

So we started a, we started a call it a farm. And we have the miniature Highland cattle and high parks and they're adorable. We have goats, we just have baby goats. So we are out there, we're actually farming. We have five dogs now because we got two Guardian livestock dogs which are now indoor dogs. Don't even get me started on that. They're still puppies though and it's been raining here for the past two weeks it seems like so I couldn't leave them outdoors. We all need a hop, you need an outlet. We need an outlet. This is your outlet. Yes, it is great therapy. And I have taken some eDiscovery calls from the barn. It's the same thing. Not sure how we tie that in to eDiscovery but I'm sure there's a way somehow.

You know, if you've read some of my older blog posts I somehow tied together the Royals winning the World Series to eDiscovery. Okay. My love of coffee roasting to eDiscovery and even Dora the Explorer at one point.

eDiscoveryLeadership.org.

Correct. So there is a dropdown link that will show you, I don't recall how far back it goes but certainly the last few were on there. 2014. 2014. Oh, it's taken 10 years. That will show you the speakers and the content, the agendas. So you will get a sense. I'm not sure if the registration link is open just yet. If not, it will be soon. Hopefully by the time this podcast airs, it'll be available, but you can see the level of talent we bring. These are big names. These are people that everyone reads about and hears about in different court decisions or that are important people, more a gross man. I mean, she's like the mother of continuous active learning. She's been a speaker at NeLI, if not every year, pretty darn close to every single year.

There's not someone that knows more about Tar than the more a gross man. And I just compared with her the other day and she's hoping to be back as a speaker for NeLI 2024 on some new ideas about how to validate Tar. Again, September 19th and 20th, you don't wanna miss it. If for some reason you can't attend in person, you can always sign up to attend remotely. Another reason to be in person though is we give out really great swag. So in addition to the great food, guess what? We give out really cool things like backpacks and you name it, all the way from coffee mugs to barbecues, it was there. And in addition to every single in-person attendee getting really cool swag, we have a drawing.

So how do you get people back in their seats? I meant to say this earlier and I got sidetracked. So we record the session. So we have to have a little short break between each one. Well, you know, human nature is you start talking, you're in the hallway, you're not rushing back to your chair once you get out of the room. Well, guess what? At NeLI, people rush back to their chairs because we ring a bell, we do a drawing and our sponsors have contributed really nice gifts, like $150 worth of gourmet chocolates for apple earbuds, you know, really good, really gift certificates. And you have to be in the room to win. And we draw names out of a bucket and so we get everybody back in the seat ready for the next session.

And the swag is really, really good.

Well, thank you.