Tessa Jacob on Building an eDiscovery Team, Teaching and the Road From TAR to Generative AI

What is your role over there? And a little bit how you got into the world of eDiscovery. Okay. So I am a partner at Husch Blackwell. I have been there 30 years. I celebrated my 30-year anniversary in January. Congratulations. Thank you. So when I started there, I was general litigator like a lot of people were back 30 years ago in about 2006 when the rule changes initially happened for the eDiscovery rules. We needed somebody to focus more on eDiscovery. I just happened to be an associate at a time that really enjoyed discovery. And so one of the partners asked me if I'd be interested and that's kind of how I got into it. I basically built our team up from the ground up. Our team is now called Husch Blackwell eDiscovery solutions.

I've got, I think, got 11 lawyers and about 16 case managers and tech people. So on the tech side, it's called Litigation Technology, which I oversee. And then I've got the attorney side. So built that team from the ground up. Since that time, I also teach at eDiscovery here at the law school. Robin joined me a couple years ago and we co-teach that class. So that's how I actually got involved with NeLI. I think NeLI started and then the year later I started teaching. And so the dean introduced me to Robin, which has been great, great professional relationship and great friendship. And she asked me to join the board and that's how I got involved in NeLI. So you've been in eDiscovery, really steeped in eDiscovery operations for quite a while now.

So in the time that you've been spending in eDiscovery, what would you say are the most significant changes or evolutions that you've seen in the industry that you've had to deal with? I mean, obviously technology, right? Like when I first used a database, literally the documents weren't stored on the database. We used it for coding and that was it. I can still remember when Husch Blackwell purchased the first database. He gave me a big book and said here, figure it out, but it was just brand new. The technology changes, right? The improvements have been very quick and just, I mean, threading is my first, the best example. I mean, I remember when we first got it, threading, everybody was kind of nervous to use it and it just quickly overtook everything.

The use of technology, assisted review, again, I can remember, I think I was one of the first firms in the town that used TAR at the time and then it just took off, right? So the technology changes have been really, really quick and massive. The other things is just data, right? The size of the volume that we're dealing with. Our cases weren't always that big and now standard cases is over 100 gigs. And so that's a big change and learning how to deal with that from the firm's perspective to help save costs for clients, right, to be efficient. So looking at the new tools and dealing with data.

Email threading, yeah. It seems so basic now. Right, it does. It does. You know, things like finding the most inclusive emails so you don't have to read all the replies and the forwards, right? You have received over the years a lot of accolades for what you've done. So when you talk about that first day from getting a big book on how to use a database to you received an award as Relativity's Tech Evangelist of the Year a few years ago, what has been, I guess, the most significant professional achievement for you in all these years? Yeah. I mean, a couple. I mean, obviously building this team at Husch Blackwell, again, it was ground up. You know, when we started, I think some of the partners were like, why do we need to need a discovery team and, you know, that portion of the case isn't that important to now it is.

It is one of the most significant parts of the case. And I love that we have this team that's a resource for all of our cases. And that team also we educate, right? We do all the education for the firm so that I think that's a big achievement. The class here, I've been, I think I've been teaching for now. It'll be my eighth year. And I love hearing from students that my class is very practical, right? It's not theoretical. We teach it like you, I teach the associates, like how to do eDiscovery in a case. And when they go away, they have a book of how to do this. And I've had, I've actually run into a former student in the building and saying, oh my gosh, I have the same book with me and I'm still using it.

And so I love that, that I think those are two big professional achievements. And then I think there's been two other ones that I've, there were goals that I set when I got into this area and I was happy to achieve them. One was joining Sedona, the steering committee, right? Being asked to be on that steering committee. It's looking at Sedona from afar when I first started. It comprised of people that were the most knowledgeable in the area. And I was always like leaning towards them, getting advice from them. And so one day being asked to be on it, that was a big thing. I remember Judge Pat Collin me and asking me, and I was just like, wow. Okay. And then I think the next one would be Chambers Recognition.

Again, it's the group that is in Chambers Recognition. Those were always people that I looked up to and for years was trying to figure out like how do I get there? How do I learn as much as they do? And so to finally get that recognition was a big deal for me.

I think the volume of data is still a huge challenge, right? People think that you can press a little button and it's done quickly. Learning the new technologies in order to be as efficient as possible. And it's always changing. I mean, if you would have told me 10 years ago that I would be searching email inside a client's environment, I would have been like, no, we're going to always pull it out. But now with Office 365, I do that a lot. But convincing clients, hey, that's the way to do it. I think so the challenge for me always is how do I educate and sell what we can do to our partners and to our clients? How do I let them know and convince them that this way of doing something is going to be the most efficient and the best way?

And then there's also still challenges with really complicated data in cases as educating the judiciary, right? Like when I'm in front of a judge on a case, how do we make our argument? And how do we take something that can be very complicated and distill it down so we can educate the judge? So we can win our position.

Or we argue. Yeah, we argue. But I've always been on the education side, right? The arguments that I've seen and especially a lot of times they don't, the stance that people take in just arguing about everything doesn't usually win. And so for me, with my personality and the way I am education and teaching people, I've always been able to convince people that way. And for me, it's always worked. So, and I think part of it is when I first got in the area of eDiscovery, I was kind of a rules geek. So that part of it I understood, I didn't understand the technology at all, right? Like I was an econ and poly-sci major. I got technology was, you know, using my new iPhone or at the time I think I had a Blackberry.

I didn't understand that. So I had to learn a lot. And I really appreciated the people that were willing to help me learn. And a lot of that, I mean, I think I learned the most about technology from our own IT folks. Like I have the people that run the RIT systems at the firm became people that were really willing to help me learn. If I had something new that I'd never addressed before, I'd, you know, email the CEO and say, hey, who at our firm knows acts? And I'd be willing to learn. And I appreciated that. And on the flip side, I had somebody I worked with that wasn't good at educating and wasn't willing to. And it was really intimidating being on a call where there's somebody that was supposed to be on my side that wasn't willing to help me, right?

That was, um, and so being in that position, I really decided that I got to help people. So it doesn't help cutting them down. It doesn't help showing in a meeting that someone doesn't know anything. You're not going to convince them that way. So I've really taken it on myself that with this role in eDiscovery dealing with partners of all, you know, that are really excellent at all these different things. They may not know this area, but that's okay. That my role is to help educate them so they can sell it to their clients and they can sell it to the judge. And it's not for me to always be that person out front that's, you know, getting all the glory and that's okay. And so I've learned through my own experiences, that's a better way to deal with people.

And it also seems like a better way just to make the firm better, make the environment of everyone you're working with better at what you're trying to execute. And it's also team building. You had to do that. Exactly. And I guess what I would say is, you know, the other thing that I've been, I've learned and I've convinced the firm is not every single litigator needs to understand all sorts of technology and every rule and nuance, right? That's what we're here for. We jump in and we can parachute in and help people. We're a resource for them. And it just makes our lawyers and our services that we provide to our clients much better because they've got us as a resource and they don't necessarily need to spend all the time learning every nuance detail involved in eDiscovery because they have our team.

But we, when we provide education, I always want to make sure that people have the baseline they need so they can handle the case. But we're here for all the crazy different types of data, things like that.

They want to see the book from beginning to end. You got handed that book around the first database for those who have to be mentored into really strong eDiscovery professionals nowadays. How do you deal with that mentorship and that teaching inside the firm? So our group, so when I find a person that's really that interested, I try to convince them, hey, why don't you do that? I try to convince them, hey, why don't you come and join our group? Because our goal is to have enough people in our group in all the various practice areas so that they can then handle the case. I can't be on every case. But as far as education, I mean, every month we meet and I pick a topic that we are going to get trained on whether it's how do you analyze search terms in new X, how do you do Office 365 searches, how do you review someone's ESI or what are we looking at?

So we do specific training and then I also, you know, every time I get a question from somebody at the firm or every time we have an issue, I make a note of it. And those are the things I address with them so they know what's going on.

Yeah, you know, I feel like we were, or I was personally an early adopter of TAR. But a lot of that had to do with those that were ahead of me in the industry, like Maura Grossman, right? Like there were people out there that had tested those products that really gave us the comfort we needed to use it. And then Judge Peck, you know, issued the opinion and we were all great. Before that, I was kind of standing there going, I don't know if I want to be the first one to use it in the case. So that was there. What I, we're not quite there, right? With generative AI. Like we have, you mentioned, I mean, there's several companies that are beta testing with different firms.

As far as Sedona, we are, we are in a, we have a brainstorming group for the use of AI in Discovery, which will soon hopefully will have a paper coming out. We've had some conferences that were just around AI. So it's all very new still, right? And so I think the only thing that what I personally do is I mean, we have one product that we have used at the firm. And I've been, I tested it, right? Testing it, comparing it to human review, comparing it to TAR, because there's not, there's not anybody else as team doing. I would love it if there was somebody out there. But, but even with the testing of TAR, I can remember going up tomorrow at a conference saying, well, you guys keep talking about it works.

It's great. But nobody's telling me what to use. Like I need to know that. So that's what we have to do here too. Like you have to keep trying it yourself that rather than relying on it. I think, you know, in the next five to 10 years, it's going to be, you know, leaps and bounds of where we are with use of AI and specifically generative AI for responsiveness review. I just don't think it's quite there yet. The things that are beta being beta tested, I'm waiting for those to come out to see. Can we do it? Because right now from what I've used, there's still, there's a lot of going back and human involvement in it as well. But I really try not to have technology aversion where, you know, you try something once you're like, I'll never try it again.

And which I think all of us lawyers really do have that. But hopefully in 10 years, it will really kind of change how we do discovery. You say in 10 years, do you think? Probably before then. Yeah. Well, that was my question. I'm hoping it's next year. Right. Before I, before I retire, I hope.

The use of TAR in discovery really took off for two reasons, right? One was Judge Peck's opinion that basically said that black letter, it works, right? Nobody has to worry about the technology and then the improvement of validation and how we came about. But at the time, right before he wrote that opinion, Judge Waxse, he wrote a Washburn Law Review article about, do we need to do a Daubert analysis on the use of TAR? That technology and basically you can tell we didn't, we went the other way. But it was always interesting to me because I'm like, how do we know that black box works? Right? We've just been told that every technology is slightly different. I've used enough TAR tools to know why all of them work a little differently.

Are we prepared to go there with generative AI? Right? And just say it works. And I've had this conversation with several federal judges. We asked this question on the judicial panel at the last Saldana conference. And what was interesting is I think almost every judge said, no, we're not prepared because I think generative AI is just getting to another level of doing things. And there's been a, so far there's already been a lot of questions about, is it working correctly? Are there false readings? And I mean, all of those cases where we're seeing, it had to do with, a lot of it had to do with research, right? Wrong cases, cases that were made up. But because of that negativity and some of the issues they've seen, I think the judges are already saying, I'm not sure that I'm just going to say, yep, it works.

You can use it in discovery. Definitely you better tell the other side if you're using is what we heard a lot. But already the judges, they're already questioning the use of it and does it work properly? So I think that's what's drawing it. Whereas when we were starting with TAR, we didn't have that. We didn't already have some issues that were being flagged. And so I think that's why the judges that have been asked that question are saying, yeah, no, I'm not comfortable saying you can use generative AI for discovery already. Because everybody's like, well, you just have to do validation. But the judges when asked, they were questioning. And I think it has to do with the fact that the use of generative AI for a lot of things, right?

The fakes out there, all of that is causing some of this worry, some of this negativity about it. Whereas we didn't have that with TAR. It was just boom, it's been tested. Here, let's go.

Yes.

Well, I don't think every lawyer that uses it needs to understand everything about it, right? We just have to make sure that people that do not understand it have tested it enough, generally. I mean, we don't know, I don't know how a plane actually flies. I hope somebody does, right? I get in it. So I don't think we need to know, but you need to know the basics, right? You need to know some of the examples you gave, like, for this particular project, what is it, what is the generative AI using? Is it sandboxed enough? Is it using things that I inputted for prior cases? Is it going outside the sandbox? When I give it a prompt, is it then prompting itself and making other prompts?

How do I get access to that? So that, at some basic level, you need to know.

Yeah. You know, the way we communicate has changed so much in the last 10 years, right? I mean, I think the technology needs to come forward on some of that. I mean, the best example is dealing with phone data, right? And texting. It's still kind of the same way it's been. It hasn't changed. And we need to get better at that, right? And I'm hoping that people that are listening to this podcast, specifically the vendors that developed this, I'm still like with my text, what we can get. I'm like, why am I still looking at the same spreadsheet? I want to see better imaging. I want to be able to, you know, emojis change and now you can develop your own ones, right? How do we deal with that?

Now we've got phones that you can send a text and then you can take it back. And how do you deal with that? So there's a lot of technology that we're using. Just that we've got that our clients are using, the bad actors are using. We have to learn how to collect those better. We have to learn how to review those better. And so we need that technology. The technology needs to keep up. It's interesting. It's sort of a back to basics almost, but as the technology advances, we have to remember the basics of how to be able to appropriately be able to collect. And, you know, I think that there's, we've been fortunate. We have seen a lot of different technology producers create some new software, but it always seems like maybe it's a step behind every time Apple or Google or the Android.

Somebody changes something. It becomes a little bit more complex.

So, I mean, Robin has done an amazing thing with NeLI, right? Like bringing the fact that NeLI has such a reputation now that we can attract the best and the brightest in this area from judiciary to vendors to attorneys to come to Kansas City for this conference is amazing. I remember the first time I attended, I was just astonished right that she put this together and that now how far it's gone. So it's great for this legal community. The fact that you can get the best in the class education in Kansas City for, you know, just that to me is amazing that we can do that. And then the fact that, you know, we do webinars with it and it's all over, right? So I think just being able to access that education in the Midwest is amazing.