Collaboration and Trust in E-Discovery

Thank you so much. Thanks for having us. We're thrilled to get to chat with you and tell you a little bit more about what we do in the eDiscovery space. Well, we're excited about it as well. Now, listen, you know, I could read off your bios very well, you know, I could read it off just as good as Jared can. Maybe a little bit better, but it's good to hear in your own words. Now, Scott, tell us a little bit about yourself, a little bit about your practice to get started.

Certainly. Madelaine and I co chair our eDiscovery subgroup here at the firm, and have worked over the last ten, fifteen years on a large number of large document review projects, both in the civil and criminal context. And so we like to say if there's been a big document review project in this state in the last few years, we've probably touched it or had something to do with it in some way, shape, or form. I also I think one of the things that's unique about me for purposes of this conversation is I didn't go right from kindergarten to law school as we like to say in the field.

I took a couple of years in between after I graduated and worked in IT. And so that helps me talk with a lot of my clients and their IT professionals on where their documents are and speak a little bit more in a language that we can kind of understand and communicate effectively. That's been a help to me, and is why I ended up in eDiscovery. Well, I am one of those k to law school graduates, but I have been thankfully working with Scott for the last fifteen years here at Warner, and as he mentioned, I'm sort of the criminal side of this duo, and I primarily work in white collar criminal defense to spend a lot of my time not just in the courtroom, but then also in the discovery side, responding to grand jury subpoenas, CIDs, or other government investigations.

So, I have the lack of having the information about what is really needed in trial, that helps inform kind of early case management, and I can better let my clients know what it is that truly is going at the end of the day to be a valuable in discovery requests.

I agree with you. I do think that there are some similarities, but primarily what we see are differences. I think, in large part, the criminal bar is about five to ten years behind the civil bar, in terms of the use of technology, assistive to review, the use of early case assessment, and sort of really embracing the different technological tools that we have to call documents at the front end to really get at what both sides at the end of the day are going to consider to be the key documents. And part of that, I think, is the fact that many government attorneys and certainly many defense counsel, especially those working in public defense So, your federal public defender's office, state defender's offices don't have access to the type of vendor, support, or databases that you know, the four of us kind of work in every day.

And so when you don't get a chance to work with that technology a lot, you don't necessarily trust it because you don't know how it works, you don't know how it's helping you. And I think additionally, especially in sort of what I refer to as like the street crime arena, you're having proliferation of the types of data that is incredibly useful for prosecutions. That is changing on a constant basis. So when we all started this, we were thinking about bankers boxes of documents.

My criminal case is now involve GPS data from somebody's Apple Watch. Information that was recorded on an Alexa. Information that maybe is in your GPS and your computer and your car.

And so, you know, we're still trying to get a grasp on how best to not just preserve that information, identify it, and collect it. And so while the civil side of things is a little bit ahead of us, I have seen some really good strides in the criminal space, especially when it comes to kind of major investigations in recent years where they're beginning to embrace the use of technology assisted review in some of these technological tools because while the information itself is important, the prosecutors or the government investigators also don't wanna be the ones that are getting sixteen million documents dumped on them because they didn't want you to use technology assisted review or search terms or they wanted you to collect from a hundred custodians rather than ten because they didn't understand the technology or they wanted to make sure they had everything.

And because they are having trouble and difficulty shifting through that data, I think it is in a lot of cases really helped for them to embrace some of these tools so that we can all reduce the amount that we have to collect, review, and then produce.

Yeah. And I think what Madelaine said is all very true. And I like to focus as much as I can on similarities there because I think to her point, we do need to bring more technology assisted review and good eDiscovery principles to the criminal arena because it's the same set of problems that we have in the civil context. You're grabbing data, you're providing the data, you're providing evidence for the case. Ultimately, that has to be reviewed by the other side.

And if the other side, whether it's a criminal defense firm or a civil firm has limited resources, the way you gather the data, the way you produce it, it all matters. And so you know, again, and this will be a constant theme for what we talk about. It's really about building trust.

Right? And if you can build trust with the government agency that's investigating you, you may have an opportunity sell them on technology assisted review or on using technology to reduce their burden in reviewing the data that you produce to them.

Yeah, have conversations. I boil it down to that very simple point. Number one, have conversations with your client. It's very difficult to build trust with the bench or your opponent, your opposing counsel in the case, if you haven't talked to your client, you don't know what you're talking about.

So if you make representations about how much this is gonna cost or, you know, how much data they're requesting in their production request without having had a full conversation with your client. You're doing a disservice to building that trust with opposing counsel. So number one, at the outset of any representation, talk to your client.

What are your goals, you know, from a spend standpoint, from a litigation success standpoint, from a protection of your information standpoint?

I mean, Jared, you just talked about the proliferation of data sources in criminal cases, and that's definitely true. In some with Alexa and, you know, ring cameras, they're more interesting. But it's also happening on the civil side. You know, we think about iPads and other devices, cell phones, that are being provided by businesses, different apps on the cell phones, different chat functions, there's a lot of data. So you've got to get your arms around the data with your client and understand what they're comfortable producing and litigation and what would be an uncomfortable production for them. Maybe they've got some trade secrets that they don't want to go out the door.

So having that conversation with your client first, that you've got your goals aligned, and then having a conversation very early on with opposing counsel. If I'm the defendant in a complaint, I'm gonna call the plaintiff probably within the first couple of weeks of getting the complaint and saying, We've looked at this. We've identified your claims here. Here's what we think are the five most relevant custodians.

And here are the data sources. We're gonna put this in the early joint status report we have to file, wherever, depending on the jurisdiction, we'll put this in our filing, but we wanted you to know upfront. This is where we think the most relevant data is, and the reason for doing that is to save everybody cost, time and expense. Right?

I mean, if you can cut down on the data sources and build that trust, you're going to have an easier time in discovery than you will if you all retreat to your corners fight about producing every last shred of paper or email or piece of evidence and wait for the judge to decide, because for as much respect, as I have for the bench, in most instances, the parties are much better equipped to arrive at a resolution to an issue than the benches. Why? Because you know your client's interest and the facts of that case a lot better than the judge does. You know the technology involved.

So, again, I think about this as collaboration with the bench and collaboration with opposing counsel because ninety percent of these cases are going to settle. So at some point, you're going to have to get in a room, you're gonna have to get along with opposing counsel, and you're gonna have to figure it out. So why should eDiscovery be any different? And to that point, I think it's important to take a step back as well and recognize that sometimes the best defense for your client is to collaborate.

I mean, we're all here, and we're all doing this work in this space because litigation is expensive, and the largest contributor to that incredible expense is the discovery phase. And as these types of data sources continue to proliferate and as the amount of data I can put on my iPhone continues to grow by each year, it's only going to get more expensive. And so I think that there needs to be kind of a reckoning within the bar itself that you need to figure out how to best defend your client with spending the least amount of money. I'm not in any way suggesting you shouldn't vigorously defend your client.

That is absolutely what we're all doing. But at the same time, does that require you to go back and force the other side to look through two decades worth of backup tapes? Very rarely is that going to be the case, but a lot of times because we're looking at the other side as our adversaries or opposing counsel rather than colleagues who are working just like us to try to get to a spot where we can review the case and make sure justice is done. If we're doing that, then we're not gonna trust the other side and we're gonna force them to overturn every single piece of paper from all of history rather than just sitting down in a room Scott suggests and saying to each other, what makes the most sense?

What does the data say after we've put it through whatever early case assessment, program, or model that we have, Let's look at those first, and then we'll talk about what we're going to do next, or whether we have the information that's necessary to decide what to do next in this case. And so I think by recognizing that you don't always have to be in an adversarial position, your best offense is to collaborate with the other side. I think that's step number one in getting these costs reduced. There is a lot of goodness to unpack here.

Yeah. Because, Jared, I mean, at any point in discovery, you're a little bit reactive, as I said earlier, and a little bit beholden to what the other side think of what you've done so far. And so, you know, I had a case where we did 27 depositions an exchange, you know, probably half a million documents maybe more. And when the case was over, I can recall sitting down with the other lawyer and saying, and we didn't need 27 depositions, did we?

And he said, no, probably not. So, you know, again, we're kind of after the fact being so why aren't we able to do that on the front end? And, again, I think it's because we're taking too long to figure that first piece out of where the client information is and what their sensitivities are.

To your point, obviously, if there's some trade secrets and there's some data sources that your client is uncomfortable with and they don't want part of discovery for a variety of reasons. You need to know that on the front end, but I find it more helpful to kind of protect the client's interests knowing that early and knowing where everything else is because most of the time, you know, it goes back to the old request of give me all documents that say x, y, or z.

I mean, it's a crazy request, and as time goes on, it gets even more and more crazy because of how many different places that information sits on the client side of the wall.

You don't need to give every last example of the same amount of data. You just need to find the one. Right? So if there's a data source that is has more trade secrets or more sensitivities and you find out about it early, in my view, the most effective way of protecting that data isn't to hide it.

It's to say it's available in other sources via other sources.

I'm the expert. I'm gonna tell you where that data is and how to get it, and I'm gonna volunteer that information to you because I'm trying to protect another strategic goal of my client.

And it may well be that the client has no document sensitivities. They just want this done, for as little as they can pay to get it done. Most of my clients fall into that category in some way, shape, or form. And that's the most effective way of doing that too because like I said, you know, to settle a case or to be done with discovery, to not get another motion to compel, you have to satiate in some ways the other side.

We're talking about word choices that we use as lawyers. It's extremely important. We as lawyers choose our words so carefully. Right?

Yet, the words that we use have a direct correlation on how much money we're spending in litigation, i.e., we call our opposing counsel, our adversaries, right? And then we talk about a demand for motions, right? You know, demand for discovery. Right?

There's different words we can use. And when we talk about the word cooperation, it's like, oh my gosh. No. Right?

Madelaine, I'll start with you. I think there are a couple of reasons. I think one is at least in terms of litigation, we see ourselves in the adversarial arena.

You know, right out of the starting gate, we're adversaries, we're on opposing sides. And in so many cases, that's in fact not true. We're both trying to get to the same goal, which is a efficient and a good resolution for our client. And so I think if you put yourself in that frame of mind, and you remind yourself that we're not just lawyers, but we're counselors and we're advisors, I think that will inform the way that you go forward.

I also think as the non techy here, but the one with the performance background, one of the things they teach you when you're a performer, I'll self promote now. I sing opera in my spare time of which there is little. One of the things they teach you about good acting is that you need to be vulnerable.

Right? And I think that as lawyers, we oftentimes think that we need to know everything or we need to look like we know everything. And so, we forget that it's okay to ask questions.

It's okay to understand that we're all on a continuous learning journey. Right? Rule 1.1 of the Michigan rules of professional conduct and the ABA rules of professional conduct, contemplate, and require us that this is you don't just get out of law school past the bar and you have all the information you'll ever need in your legal career in your head. Everyone who's ever you know, started the day after the bar realizes that is far from true. Right? It's like you're continuing to learn and evolve as a human and certainly as a lawyer as you go on And one of the things that those rules now tell us is that it's not just learning about updates in case law, but you need to also immerse yourself in updates in technology.

And so what that doesn't mean you have to go to legal week, although I we all think here had a great time and fabulous highly recommend, but it could be as simple as going to your local, you know, federal bar association, lunch, and learn, talking about updates and eDiscovery. It can be attending webinars put on by law firms or by government organizations about the use of AI and litigation. But understanding and being vulnerable enough with yourself to say, I don't get this, I don't understand it, and I wanna learn more I think is going to help people to embrace this new technology and not come out of the gate as very defensive because as Scott says, they don't know enough to have a defensible position.

Yeah, Daniel. I mean, I think it's a whole other podcast. Psychology of the practice of law, but I do think the way we choose our words and the way we develop our relationships with the other lawyers, whether they're on our side and co counsel or the they're on the other side of the v, it matters. The way we choose our words and the letters and the way we write them when we write opposing counsel matters, the people who write you super late at night because they're trying to get a reaction out of you, that matters, and that might make you angry. So it all matters. And I think the way we choose to talk with our opposing counsel matters in terms of getting a resolution and getting to a good place on eDiscovery. Especially.

Because again, there's going to be a wide swath of attorneys in terms of competence on this, their knowledge base on this, what you don't wanna do is talk down to them, insult them, make them feel uncomfortable because they're going to retreat psychologically to a defensive position and you're never gonna get anywhere. So, again, trying to strike a collaborative, cooperative tone, understanding that most of these cases are going to settle and you're going to have to get there at some point whether it's court ordered mediation or you trying to just be a good person on the phone with opposing counsel.

You'd be surprised at how far that gets you. It matters. And so, again, the ultimate goal here is to be an advocate, not a Zealous one necessarily, but an advocate for your client. More often than not, again, there's a cost component and a sensitivity to the cost that is a disservice is being done to that by being a jerk or by being unnecessarily confrontational.

You're just gonna cause another motion to get filed that you're gonna have to respond to, and who pays for that? The client.

Definitely, the latter.

You know, in the beginning, you kind of mimic what you see in law school, which is very adversarial in nature, law school just in general, whether it's, you know, the classmates you're competing with or if you went to a law school or the socratic method, you were kind of feuding with your professors some of which were a lot harder on you than others. But, yeah, it's definitely been an evolution, Jared. And what I've seen work and be effective and what I've seen not work and not be effective. And if I go back and look at the cases where I was trying to be an advocate for the sake of being an advocate, meaning. I was just trying to argue about things because I thought that's what was in the best interest of my client. Those cases took longer to resolve. They had unnecessary fights in them, which I'm sure we thought were necessary at the time, but with the benefit of hindsight, you start to see where you can cut costs and cut headaches and cut expenses by just being cooperative.

And again, that might not be your client's goal in that particular piece of litigation depending on what's going on, but more often than not, it is. And over time, I've found that the most effective way to reduce eDiscovery spend in existing litigation as cooperation, and I've seen it time and time again. And so, yes, I'm a very staunch advocate of that now, wasn't always in the beginning, but I've learned over the years that that tends to be what gets my client the best result.

Right? Just like vulnerability is okay, and if we empower ourselves through knowledge, if we choose accountability, and we strive for creating exceptional experiences every day, and we put our clients first, then we'll adhere to those ethical responsibilities that we've got under the rules of professional responsibility and we can adhere to federal rules of procedure one that says we should have a just speedy inexpensive approach to all of our matters. So thank you both very much for teaching that to all of us and to all of the listeners out there. Thank you very much for having us.

Next time. Next time. Next time. Next time.

This was a ton of fun and very insightful. Madelaine Lane, Scott Carvo. Thanks a lot for coming on. Thanks for having me.