The Power of Active Listening: AI and E-Discovery

Thank you very much.

Well, I am Texan by blood and Californian by heart now.

But I think that makes me an interesting mix of a human and hopefully fun to work with, and I definitely hit it off with you too, Daniel. But I've been working at Kirkland. Well, I started at Kirkland when I was a baby in twenty ten and had no idea what I was doing and, was thrown into a massive, massive multi district litigation, probably one of the biggest at the time.

And just sort of naturally fell into working on discovery in addition to other things. And I practiced what I call traditional litigation for a number of years with always an interest and a semi focus on the discovery side and just sort of naturally started to fall into spending more and more of my time there. And then I would say in about twenty twenty, I full time dedicated my practice to eDiscovery, and I've I've never looked back because I really love it. I love what I do, and I'm really lucky to lead a group of fifteen attorneys and growing at Kirkland who focus on eDiscovery. I have a great job. I really love it.

Honestly, I think what had me coming back to it in the beginning is the people who I was working with. There's something about the people in this industry and the people who work on this side of the case that I really love. I think we're really collegial, a lot of teamwork.

We like solving puzzles, and I think that's more about what it is for me. It's, like, less the technical side that drew me to it, but more of the I'm solving this gigantic years long puzzle in a way that needs to make sense for my client and also for our trial goals and just the overall case goals that I really liked.

I didn't think about bringing this up today, but I did write an article maybe a year or two ago that I think really speaks to my ethics on this point, which is it's about the principles of meeting and conferring. And there are several kind of different tips that I give folks who are engaging in a lot of meeting and conferring. And it's not specific to discovery issues, but I think that's a lot of where the meet confers are. Right? You're not accomplishing what you think you're accomplishing necessarily by being difficult to work with. I think our ultimate goal for our client is to find efficient compromise, right, that drives the case forward in a way that isn't overly burdensome, isn't overly costly to them.

And a lot of the times taking that to court is not the way to achieve that goal. And I find that a lot of opposing counsel are willing to engage in real and meaningful discussions about compromise. Right? And the way to do that and the way to make it happen.

And one of the things I often say in Meet Converse is, like, let's stop talking about this, like, globally. Like, these big kind of ten thousand foot issues. Like, let's talk about practical steps. Like, practical things.

What do you need? What are the practical ways I'm gonna get you that information? Or why is that impractical? Or why are you not entitled to that?

Right? So I really try to drill down into the nitty gritty so that we don't take these big unnecessary fights to the court that not only cost the client more in that motion practice effort, right, but could ultimately cost the client more if you receive a ruling that's not in favor for your client. All that being said, like, I still have to do a ton of motion practice, but that's not my goal. Right?

My goal is not to get there.

Oh, yeah. Of course.

So meeting and conferring is basically just the process of talking to opposing counsel. Most courts require for it to actually be considered a true meeting confer for that to be live, meaning telephone or Zoom or in person, although in person is very rare these days, of course. But, like, written letters back and forth are not considered meaning and conferring, which I think is a very sound rule because much like the Internet, people are more hesitant to say inappropriate things when they're actually talking live to the human being, and which I think allows us to make progress. So whenever there is a dispute in a litigation that we think maybe we're gonna need court intervention, Almost every court requires that opposing counsel have this live discussion, this meet and confer prior to bringing it to the court's attention.

And the court's goal there is obviously for the parties to resolve it so that it doesn't have to deal with unnecessary motion practice. Or if not resolve it, at least limit it to the lowest number of issues possible. Right? So I don't always lock away kind of successful in reaching agreement, but today, for example, we were talking about a number of different documents that opposing counsel was challenging privilege on, and we were able to walk away with some of them being resolved, and they're no longer challenging them.

So I probably didn't avoid motion practice, but I probably limited it.

Yes. In federal court. And then there are also always or often, I should say, specific judge standing orders and rules. I think probably seventy five percent of my judges have it included in either the court, like the district's rules, or if you're in a state, like the county rules, or in their own personal standing orders that essentially says you absolutely cannot come to me unless you've met conferred.

And some of them even require, like, a special certification at the bottom of your motion that require, like, a special certification at the bottom of your motion that says, I confirm that on the x date, I, like, telephonically met and conferred with opposing counsel, and we were unable to resolve the issue.

I have to tell you, though, and I don't make this a regular practice, but I did have opposing counsel once accuse me of bad faith in violating an ethical rule, which they absolutely were not correct. And they said that's a very serious accusation, and we need to meet and confer immediately. And we're going to have a recorded meet and confer. And we did.

And, obviously, I had to get their consent. I can't just do that. Right? But I got their consent.

We had that meet and confer, and guess who never actually thereafter accused me of violating any rule again.

Not really beyond that you have to do it and it has to be live. Right? I haven't encountered any kind of sort of template, and I think the issues are so varied that that might be really difficult to do. But it would be really interesting to see some sort of guidance from judges on here are the things that we expect you to cover or certify or that we wanna know that you've tackled. In general, I find that the courts are just happy if it's actually happened. Right? And that you have actually distilled down the argument.

But I could see a world where if they provided some guidance on that, that might even bring more benefit to their understanding of the issues and emotions.

I think my sort of standard, which I would say applies to if we're talking about, for example, like, custodians or search terms or search parameters.

So that sort of specific issue is just to come with a proposal. Right? Don't come empty handed. Come with, here's what I think is actually reasonable, relevant, not burdensome, appropriate, right, and here's what I'm willing to do.

And to be able to start a real negotiation that way, I think coming to the table just totally empty handed and saying, like, well, what do you think we should do? Isn't always very productive.

Sometimes there might be reasons for that if you're very early in the case and there's not a lot known yet or whatever, right? But in general, if we're at the point where we're discussing search parameters, my goal is always to come to the table with what I think is an appropriate production or review and production parameters.

I guess what I would say now is that I think it's important to understand the goal that people are trying to achieve and to focus on what it is that they're trying to accomplish. I think that's part of active listening. Right? And that kinda goes to the example I was giving Jared earlier about this meet and confer I just had. It's like, what is the actual heart of the issue, and what is it you're trying to accomplish? And you kinda work backwards from there, and you need to be able to put yourself in the other person's shoes, of course, to understand that ultimate goal and then how you're going to achieve that.

Or maybe it's not achievable because if you're on the opposing side, right, you're not willing to do that.

But also if you're working together, then it is think, stepping backwards from that ultimate goal and saying, how are we going to get there? And I know one of the most important things to me on that when I'm partnering with somebody, whether it be co counsel or service provider or whoever it might be, and I know I said this because it really, really is so important to me is that you also feel free to speak up. Right? So part of active listening is also responding then to the question or the issue that is being discussed.

And doing that requires you to flag when you're seeing concerns or issues with the path forward. So especially in, like, the service provider world, I might give a direction, and I always explain my ultimate goal. Like, where are we going from here? What are we doing?

Because I want the people that are working with me to understand that so that they can hear it and respond and say, oh, well, now that I know what you're trying to accomplish, here are the things that kinda need to be tweaked with your plan or might work or have unintended consequences. Right? And kind of raising that red flag so that then we can work together towards the ultimate goal. And I don't think that happens if people aren't doing active listening.

Yeah. And sometimes it's not even as a result of the meet and confer process, although it can be. Sometimes it can just be a result of the different methodology that we're going to use to review documents, right, to target target the population and rate so for example, I had a case where we basically had six weeks to do all document discovery and it wasn't a tiny case. It was like, you know, over a dozen custodians, millions of records, and we had a lot of options of how to get that done.

One, of course, would be just traditional search terms linear review. Another could be using tar. But for a variety of reasons, including the fact that we weren't really concerned about what was in the documents. Like, our client had a good story.

We didn't believe that there would be anything concerning in there.

We decided just to do a very targeted review for promo screening and key documents.

And we were able to not only get it done, which was very important, but also quantify sort of the massive savings for that client of not doing a traditional review. And I wouldn't say that that's a scenario that can be applied regularly in every case, but it made sense for that case and that client. And as a result, it saved them hundreds of thousands of dollars.

Yeah, right over yeah. It was a smooth transition.

Oh, my gosh. Well, definitely, it's gonna be beneficial and useful to lawyers at far more than lawyers, of course. And like you said, right, I'm gonna speak for myself and not for the firm as a whole. But in my practice, we're starting to see GenAI pop up everywhere. Like, I just last week got from a deposition transcript provider with the transcript, and they just automatically provided a GenAI summary, the transcript. And it was really cool.

I didn't have to page through the several hundred page transcripts, right, to sort of generally get the point. It's not an issue that is really important for my work on the case, but I was interested in deposition. I wanna see what was going on. And so instead of having to have some associate, like, run through and spend a whole bunch of time on doing that, the summary was pretty darn good, so that was cool.

But that was just an aspect of, like, where I was happy that it was an interesting thing that popped up. The reality is that for my work, for my discovery focused work, I do still think there's a lot of opportunity to use Gen AI in an internal way, meaning, like, so many folks are coming up with great ways to have document summaries or to use GenAI to find key docs and things like that. But where I'm not ready to move forward yet is externally, meaning using it in a way that is going to call my documents for review and production, for example. And the reason that I'm not ready to do that is because I'm on these massive cases that are sometimes bet the company cases.

Right? And have a lot of risk for the client and cost a lot of money for the client. And there isn't yet case law guiding from courts where this is appropriate, what kind of validation is needed. I think that we're getting close.

I think it's coming, and I'm really excited about that. I think there's a lot of cool stuff out there. But until I see some sort of court guidance, I think it's sort of unlikely to be used for document calling review and production in a way that's externally facing, just if that makes sense.

Yeah. I have. So we've been playing around with using Gen AI to create privilege logs. So that's a good example of, like, I'm not ready to use that because it's external, but I'm really interested in how it's going.

We're testing it with a couple of different platforms and a couple of different clients who are involved and very interested in it. And I should say here that we never ever use Gen AI on our clients' data without their permission. Right? So that's really important to us.

We have information for all of our clients on whether or not they allow us to use that. And so we don't touch it unless it's something that they're interested in. But we have a few clients who are really interested in it and are we're using it in different ways. So that's one is imagine if you could just hit a button and have your privilege logged on for you.

Yes. Yes. So not in an external facing way, but in a way that allows us to get things like document summaries or build chronologies and things like that. We have clients who are asking us to test it.

None of our clients are under the impression that it is going to replace our work yet or it's in a place where it can be a hundred percent trusted. So the expectation is our clients want us to use it. They want us to test it, but they also want us to validate it. Right?

And I don't mean that in the, like, tar validation y way. I mean that in, like, a, okay. If it's summarizing this document, it's creating this chronology. Let me go actually back and look and see.

Is it getting this right? Did it miss anything? Did it kinda misinterpret anything? But yes, we have specific directives from clients to do that and provide them the feedback on it.

Yeah. And we're also seeing judges institute I was gonna say GenAI, but it's actually AI policies. And I think this is just a little bit of a misunderstanding on some part, right, on the difference between AI and Gen AI. But we're starting to see orders that say if any part of a document that you submit to the court, not just motion, Right? So not just dealing with, like, hallucinated cases, but if any part of a single document filed with the court has been created using AI, then you have to disclose that to the court and certify that you have checked it and it is correct. So you're right, Daniel. It goes back to those ethical considerations of we have that duty to make sure that we're telling the truth to the court essentially.

Thank you guys very much for having me. It was a pleasure for me.