Lea Bays on eDiscovery From the Plaintiff's Side, Cooperation and Proportionality

Very good. Thank you so much for having me.

Sure. I work at Robbins Geller Rudman & Dowd, which is a plaintiff's firm that focuses mainly on securities class actions. We also do some antitrust and consumer fraud cases as well, but we are totally plaintiff's firm and based out of San Diego. I've been here for about 12 years, I think, and I focus 100% on eDiscovery issues at the firm. I'm the only person at the firm who does what I do. And so I work on all of the different cases across all of the different offices and different practice areas on eDiscovery.

Well, I never even wanted to be a lawyer at all. So let's start there. I worked before I took time off between college and law school. And I worked for nonprofits and schools working with kids who are in the juvenile justice system, either on probation or in the foster care system and working with them in developing programs to try and keep them out of jail and keep them out of the foster care system. So when I went to law school, I went with that in mind. I wanted to try and protect these kids. And so I went for more a policy. I wanted to do policy work when I got out of law school. I did not want to be an attorney. My father was an attorney.

I saw what that looked like. I didn't want to have anything to do with it. But then there was, you know, the crushing debt that followed law school. So I did actually, I went straight to the defense bar because that was easiest. I went to law school in New York City. That's in my mind, that was all that existed. It was working for the ACLU or there was the defense firm. I did not know that there was anything in between. So I went to a defense firm and worked there for three years. And I mean, I learned a lot. Like it was a very good experience to have, but it was definitely not where I belonged. It was not the kind of work I wanted to do to credit them when I said, you know, this was during the recession and I was on a big pharma case.

And they were firing everyone because, you know, there wasn't any money at that time and there wasn't any work. So I was on this big pharma case and I went in and I said, I was one of the few remaining associates out of my class. And I was like, I need to get off of this big pharma case or else I'm leaving. And to their credit, they took me off of that. They put me on smaller cases where I got better experience. And I wasn't, I mean, I was still defending corporations and very rich people, but it was a different sort of case. So I appreciated that. But still, I was there for a few years and the moment I got to a comfortable level of debt, more instead of crushing, it was significant debt.

I left and moved back to San Diego. Still didn't know that the planar spar really existed. Didn't think about it at all. And I ran into someone who I had worked at the defense firm in New York with. And I was taking the San Diego or the California bar in San Diego and she was there and she had left a couple of like maybe a year before I did. And was taking the California bar. She told me about this great firm she was working at and how different it was from the firm that we were at in New York. And that I should try and get a job there. So I started at Robin's Geller and did my first case was a case like a securities case and they were trying to do predictive coding.

And so I started to learn all about predictive coding. But when I got here immediately, this, it made sense to me like this, this was what I wanted to be doing and being able to fight against the big corporation. I mean, honestly, that really isn't it's giving like you said Dan like giving a voice to people who are not normally heard. These corporations that we go up against are like the biggest and the baddest and they comes with that incredible resources and entitlement and privilege and to be able to go up against that and say no you can't do that this isn't right. And to not be scared of their enormous power that they have is amazing. And so to work in a place that really embraces that and everyone here is like incredibly passionate about what they do, which is very different than on the defense side.

I mean, there were some people who drank the Kool-Aid on the defense side, but those were those were kind of scary people. But for the most part, everyone here is like super into what they're doing and are fully committed to the cause. And that really is the difference in trying to and for me like even the eDiscovery part of it fit even though again I didn't know eDiscovery existed when I went to law school either. But trying to find the facts. I mean really all of our all of our cases made up out of what they give us and trying to find the things that can then make our case and get to that truth is incredibly important. And so I really love being able to advocate for that.

And I'm able my firm is like really their, I mean they were pioneers in this part as far as having an eDiscovery attorney. I think they were probably the first of the plaintiff's firms to have a dedicated eDiscovery attorney and understanding the importance of that to be able to make our case. So it's been, I mean it was a game changer. I never thought I came here as you know I'll figure out what I'm doing. I'll stay here for a year or two, but I really I really kind of found a home and understanding all the differences that I mean things like, you know, rule changes in looking at the federal rules of civil procedure. And a lot of I'm able to both do, you know, I sit and evaluate search terms.

And I also monitor, you know what the rules committee is doing, because that impacts how we get our discovery what we get how much we get the form we get it in and then how we can advocate for our clients. So that's it's it's everything come best in that and I get to do I still get I'm not doing what I set out to do but I still get to fight for the little guy.

Right. Yeah, so I started out just working on the securities case. So I was not an discovery attorney when I started. But I we were trying to force defendants to use predictive coding this was I think you know 2012 I think so back you know right at the beginning there and so my job. Immediately upon starting was well what is this predictive coding thing that we're trying to make them use and how do we do it and how do we make sure that they're doing it appropriately. And again our firm has a lot of great technologists here are lit support and e Discovery department is amazing. And so we had been using technology in house to evaluate documents in house and we had a lot of experience already in different sort of sorts of analytics and so this was one of them so.

I'm just kind of got into it and was tasked with learning all about it. And then after that case, then they kind of saw the need that the person who is the partner on that case was sort of the e Discovery guru at the firm at that time but he really wanted to get back to focusing on litigating cases, but they're kept on being all these e Discovery issues that people would come to him for and so he said I'm going to do that. Okay, well, Lea kind of Lea gets this stuff. So why don't we have her be the e Discovery person. And so was able to just focus on that and come to find out there were a lot of e Discovery issues at the firm and so was able to work on all of those.

And so that's that's kind of how that all started. As somebody who has become the in house e Discovery expert. Can you share what people may not realize or appreciate the perspective of how the plaintiff's bar handles e Discovery. I mean it is it's it's very different in that everything almost everything that we need to prove our cases is coming from someone else and someone else who does not want to give it to us. There is almost there is nothing they can give us that is going to help their case so their entire purpose is to give us as little as possible. So everything is a fight. So getting any documents at all from the very basics of identifying custodians I mean we still fight about that sometimes.

And so it is a constant struggle against delay and obstruction. And so that's kind of how we come at it is having to justify everything that we're asking for even though in our minds were entitled to most of it but it is a constant obstruction so that's how we come at it and then you know in house we have you know people think we want everything and we'll take everything if it's you know between everything and nothing we'll take everything but we don't want to do that. We need to analyze those documents quickly and effectively on our end and we usually have far less time to be able to evaluate and get through those documents than the producing party did we've got to be ready to go to depositions almost immediately upon receiving the documents.

So and we need to evaluate for deficiencies. There's a lot that needs to be done in a short period of time so we use a lot of technology in house to be able to find the best documents quickly and to build all the connections and to understand who's talking to who and be able to build the story that we need to in a very short period of time.

Oh God I mean it's hard to think of it as advantage or maybe it's just the week I've had but I'm trying to fight for everything that we get but there is once we do get it. It isn't the boring is this relevant or is this not relevant like everything that we get is relevant and so then it's finding the nuggets in there that build the story and that can that can best tell the story and putting it all together so we get to focus on that and it isn't just like you know looking at a bunch of junk and trying to separate the junk from the relevant stuff so it is it's. It's more fun in that way and we can use. We can use things however we want in house because we are not having to defend a production and I get that and I think that flexibility is really nice but you know it's to our advantage to find everything so we do things the most effectively and the best that we can because our entire case right.

On being able to find the documents that we need and so we're doing the but we have incredible incentive to do that on their end not so much incentive to find all of the relevant documents to hand over to us. So I think I think in that way we do have the advantage because we really want to carefully look at and evaluate everything that we can and we have to do it as quickly as possible.

Right I'm I am very much a process driven person and I think there's a lot of sort of the mantra. Oh it doesn't matter what the process is it's all about the results so unless you can find a deficiency you don't it doesn't matter. What we do and that obviously that does that does not work for us and I don't think that's that is true at all. So I try and get the process especially because I'm not staffed on all of these cases full time so I come in and what I try and do is set up a discovery process that is going to work well so you know I'm a firm believer in ESI protocols and within that process. And within that we go through you know you're going to identify custodians you're going to identify sources you're going to identify search terms or if you're using tar you're going to talk about that and then we set up a process where we can hash out all of the potential disputes that we're going to have about the process ahead of time.

There will be you know substance sort of disputes later on but I at least want to make sure that we've got the process down so that's usually what I do and I try and. I also very much believe in explaining the positions because I understand that a lot of the defense side will believe that you know we're just trying to make things difficult for them just you know because that's what we do and we don't really have a reason for it. And that's totally untrue I have never asked for anything that I don't have a firm belief that it is necessary for us to have and so I do try and explain the rationale for why we want things why is it important that you disclose what sources use your searching.

Why do we need to know that up front and so that we can we can discuss it and they understand where we're coming from with the hope that if they understand it they will be more willing to comply with it and and try and resolve the problems that arise instead of just causing all the problems. So that's that's kind of how I work through things and I think that getting that I mean things like you know disclosing sources if I don't know what you're searching and again not all defense side is the same just like not all plaintiff side is the same but. You know if I don't ask what sources people are searching they're just going to go to email and that's it and there could be a ton of other sources but if I don't ask they'll do the bear men.

And so I need to constantly be on that or else I'm not doing my job to make sure that the discovery is as robust as it needs to be from the beginning. Or else it'll just lead to delay which is the other thing that again defense side usually doesn't doesn't have a problem with the delay so but we do. There's a lot of interesting things that you have hit on here but there you realize you hit on it. And I want to and I want to touch on this. There's something there's a lot of neuroscience and psychology and being a lawyer that a lot of people probably don't appreciate you probably do you probably understand that a lot.

I mean I love that idea. I think that you know that was the whole purpose of the idea of like cooperation was that we were supposed to and I read you know the cases back. I mean they're not even that old cases but say you know in 2006 to 2010 it was a lot about cooperation and getting to the truth and that's what the purpose of discovery is. And I truly believe that and I am by nature a problem solver and so I don't want to have disputes all the time. I do not want to fight all the time that actually is not my natural state and I wish that we could just go in and have discussions about things and again not everyone is the same and not every case is the same.

And so that does work in a lot of cases where it is it can be much more much less adversarial in the way that people aren't like you know people are very nice to each other. They're cordial about it and there is some exchange of information. Whether or not the strategy changes though I don't I don't know. So in a way I would rather have people be you know true to form and showing that they are fighting up front rather than doing it in a nice way trying to lull some sort of sense of security. In a way I respect sort of the genuineness of it. Well still of course we need we all need to be more civil with each other and I think this is a broader thing about society in general that we need to be more respectful towards each other and understand and I always try and understand the other side's position and that's a really big deal for me and I love that.

I listen to what they say but if I don't get a position explained to me I can't solve the problem because you haven't articulated a problem. And so that's where I get more frustrated when it's just no no no without a reasoning and I want to be able to I want to be able to come to a solution that makes sense for everyone. But I can't do that if no actual issue has been articulated and it's just a brick wall. So but I do I hear you on that and believe me I would I would much rather just be having conversations about things and if people if I did not have to articulate a need for you know why do we need custodians. Why do we need sources.

I think that things would go a lot smoother. It's when I get obstruction from the very beginning that it becomes hard to just have those types of conversations. That's why I mean things like you know a 26 f checklist things like that where we don't have to start at the very beginning fighting over every little thing would be would be extremely helpful. I think in making people be a little bit more civil towards each other and have that exchange of information because it is it is required or expected from the beginning. I think that would go a long way. But yes, I think I'll be more conscious about trying to change my language and see if that works.

I think again to and this will be something I'll I'll say right now but there isn't this you know plaintiff's bar you know we are all different and we all approach things in different ways and we all have different motivations depending on. The types of cases that you do someone who does employment class actions is very different than what we do. So there are different approaches to things but I think the at least from what I see is the having a rational explanation for everything that you are doing or need to do and are requesting or reasons why you are. Refusing to comply with a particular request having those justifications and really articulating those I think would be helpful for everyone and I don't see that I think enough on the other side and I think that's really.

That's really where the breakdown comes from and if I if someone has a reasonable explanation for something I'm much more apt to listen to that and try and try and work with that as much as possible there will be some things that we will not agree on regardless but at least coming forward and doing making that effort to articulate it would be incredibly helpful and have someone who's not doing that. And I think that's really what I think is knowledgeable on the phone I mean I think the plaintiff's bar has gotten enough sort of criticisms that we're not sophisticated enough in technology and we need to step it up and I've done a lot of work I mean I work with. I think that's what I think is really important is that we're not trying to get into this eDiscovery education and advocacy on the plaintiff's side entirely and trying to raise the bar on that but I'm still getting on the defense side I'm still getting the people who don't know what they're talking about and trying to negotiate a say a tar protocol with someone who doesn't know anything about tar and refuses to get someone on the phone who does.

So taking a moment and just being like okay we don't know everything either and get some experts in and trying to raise their level of knowledge as well would be really helpful.

I think so. I mean, I think if people come to me with, again, knowledge and information, we're not going to have too many problems. Again, there may be substantive issues that we need to work out, but it isn't going to be the, are we entitled to that information at all? So if I ask, you know, you say you're going to produce for emails, what about, you know, are there any other communication apps that they're using? And we get a, you don't need any of that. That's not proportional. That, that's not, again, that's, we're not going to be able to have a productive conversation. If someone comes to me and says, look, this is what we found out. And they use these two apps primarily and we're going to, you know, we're going to search those.

There's one that some people use, but it seems to be really sporadic. It's really difficult. Can we hold off on that one? We're not trying to hide anything. We just, it's, you know, and they give me some data to back up why it is more cumbersome for them to go and get that. I'm going to be much more likely to, to listen to that. And, and we can move forward from there. But when it's a, you know, what, you don't need text messages. You don't need any of that. That's not proportional. And that's where the starting place is. Then, then I think, yes, now we have to have three meeting confers about that, you know, rather than being able to work through the issues quickly.

So yes, I think having that sort of information would make things much, much smoother and more cost effective and more efficient. And build a lot of trust as well.

How do you see proportionality? Do we understand it the right way? What are your thoughts? Yeah. I mean, I think even before the rule amendments that actually put in proportionality specifically into the rules, we had a concept of that. I mean, I don't think there was ever, at least from the time that I've been here, where we said, this is irrelevant and it doesn't matter how much it costs, we get it. Like that's, I don't think that's ever been the case. We have always discussed burden and benefit and gone through some sort of proportionality analysis. Even before it was required within the rules. And so now that we do, I do feel like it's overused. It's just all of a sudden someone says, you know, it used to be, you know, people would just say burden.

Now they say burden and proportionality and, and without anything to really back that up and what makes it, why is it not proportional to the needs of the case? And people often just say the word without going through the actual analysis or they just talk about burden. And then that's like the only portion of proportionality that matters. So I do think it is overused and that not enough analysis goes into it.

I was trying to think about that. And I don't remember exactly. I know that I had worked with Tessa Jacob, who is who's also involved with NeLI in the ASU-Arkfeld conference. She was also on the board of that. And then I had met Robin probably through that maybe the Sedona conference. And so I came and spoke at NeLI a couple of times and really had a good time with it. And so Robin asked me to join the planning committee. And I was thrilled to do it, first of all, because I was the only plaintiff's person on there. And my goal is to, you know, try and have some member of the plaintiff's bar involved in all of the different eDiscovery education. Because I do think that there is an under-representation of the plaintiff's bar in the eDiscovery conferences.

And the education is so important. And I think from, you know, law school, again, there needs to be more eDiscovery in law school and with attorneys. And I think that having that rounded education is very important. Because if not, it's just an echo chamber of sort of defense side mantra. And again, there's nothing, I make it sound sinister and sometimes maybe it is, but not necessarily. It's just they come at it in a different way and they have a different perspective. But that's not the only perspective. And so it's really important to have the balance of the plaintiff's side and a critical mass of plaintiff's side, folks, so that I'm not speaking for the entire plaintiff's bar because that's that isn't practical and it's not genuine.

I have a different experience than others do. So having a critical mass of the plaintiff's bar is crucially important to having an actual education rather than an agenda, which I feel like is is part of just having one side talk about their positions on everything. And judges are at these. And so it is crucially important to have a balanced perspective on at these conferences that judges are getting educated to. I mean, I think it's what is it? EDI has they've been doing a judges education for years. And to me, that is shocking since it is an organization that is 100 percent about the defense bar and the corporations that they represent. So I think they're so I try and be involved in as many things as possible.

That is about education and discovery where there can be a balanced perspective. I feel like it's my duty to be involved, especially if there are no other plaintiffs attorneys who are involved. And Robin is fantastic and she is tenacious. And we disagree on everything having to do with the discovery. But we can still have these discussions and talk about it and we respect each other. And same with Tessa. I mean, Tessa is amazing and we've developed a great friendship. And though we may disagree on certain issues, we can still speak about them rationally and respectfully and enjoy putting this together to and have a common goal of wanting to educate attorneys and law students. And I really love the fact that UMKC is involved in this.

And they've been so involved in such a great partner on this and being able to involve the law school and law students. And they're so active and it really brings in a great perspective.

Well, first of all, I love that it's in Kansas City and I've really like all the years of coming to Kansas City. I've grown to really enjoy it. So I love that. And I love that. The what I think is really unique about NeLI is the focus on there's a lot of sort of mock. There's mock hearings, mock negotiations. And that is I feel like such an interesting way to tackle the issues and make them more practical in being able to see, OK, we can talk about the rules, we can talk about these issues. But how does it really play out? How does it how does it work in in real life? And I really enjoy the fact that there are at least one or two sort of mock hearings or negotiations within NeLI.

And I think that should be utilized more often because I think it's a not only entertaining way of doing it, but a really good practical approach to understanding why it's important to know about these issues rather than just sitting there and listening to people. Yammer on about it.

Thank you so much for having me. I really appreciate it. And I look forward to seeing you guys at NeLI this year.