eDiscovery Today (and Tomorrow): An Interview with Kelly Twigger
H5 interviews Kelly Twigger, Principal at ESI Attorneys, an Information Law and eDiscovery law firm, and frequent speaker and writer on the topic of ESI and eDiscovery.
Welcome to True North, Kelly! Thanks for taking the time to share some thoughts on the current – and future – state of eDiscovery from your unique perspective as a discovery strategist and innovator.
As you consider the arc of eDiscovery over the past decade plus, to what extent do you feel the challenges that seemed a crisis in 2005 when the ESI explosion really hit have been faced and met by the legal community?
I think that depends on how you look at “the legal community.” Unlike in 2005, there is now a growing segment of folks engaged in trying to assist the legal profession by being more in a business mindset and developing technology to help lawyers do things better, faster, and cheaper. We are doing the same thing at eDiscovery Assistant (albeit from a strategy perspective vs. data). So, from a technology perspective, I think the challenges with handling data and trying to get up to speed on eDiscovery issues are being met much more so than in 2005. There’s some pretty great ways to solve problems now. That being said, some of the ways to get to ESI are still far too expensive. Mobile devices are a good example. It shouldn’t be as hard as it is.
I think we still have a very long way to go in making sure that lawyers are where they need to be on leveraging the ESI available for a matter and using it in the most effective way possible. Many people are surprised at what lawyers don’t know about asking for and using ESI.
What people, and clients, don’t realize is that until recently (for lawyers), our clients gave us the discovery in the form of paper. We didn’t have to look for it. Now we do, and it requires knowing where to look and combining that with the strategy of the case. You have to know whether that cell phone that no longer exists really matters or whether you had an obligation to preserve it before the witness tossed it. The irony is that many lawyers poo-poo eDiscovery as a litigation support issue, thereby telling their colleagues that it is not an area of value to be learned and have expertise in. That’s missing the big picture. It also means that the clients aren’t getting the representation they should be getting. It’s been more than 11 years since we got the changes to the FRCP in 2006, and we still have a very long way to go.
Many lawyers still see eDiscovery as a massive analog document review process – they haven’t quite connected the dots that it’s all “data” now so myriad tools can be used to target a data population for evidence and connect legal strategy to process. You’ve called it the “eDiscovery disconnect.” What will it take to change this?
It’s going to take a change in the delivery of education for lawyers on this subject and a recognition that dealing with ESI requires a completely different approach to discovery. We are just now starting to teach discovery as a separate course in law school and that is fantastic. I have many colleagues who are teaching across the country and are very generous with their time and knowledge — adjunct professors are not well paid. But often, it’s not a required class, or it’s just a one credit class, and very few students take it across the country as a percentage of the whole. The subject is too complex to be given short shrift. So that is not the complete solution. Plus, that’s just for lawyers coming out of school. Practicing lawyers need help too.
The way we educate lawyers now is based on the hour long CLE requirement. Let’s be honest, most lawyers feel compelled to do CLE to meet their requirements, not to learn something new. I believe that we have to shake up the hour long requirement and instead give lawyers practical information that can be digested on-demand in small chunks when they need it. eDiscovery, like every other area of the law, is best learned by doing it. Getting your hands dirty. You have to be willing to wade in and figure it out on the fly. If you do, though, to quote Yosemite Sam, “there’s gold in them thar’ hills!”
I still see most lawyers approaching discovery the same way they did with paper — collect everything out there and then start reading it. That isn’t viable — it’s too expensive, and the lawyers can’t get to the key documents in a case because they are mired in GB or TB of data. The approach now has to be much more focused on what data is needed for the theories and elements of a case, and the concepts of proportionality and relevance spoon fed by the FRCP need to be used. Lawyers are going to have to recognize the change in approach that’s needed and implement it. It’s dramatic, no question. But there’s no way around it.
Ironically, in such a data-driven field, there also seems to be a disconnect in the use of metrics and data analytics to make eDiscovery more efficient and cost-effective. Why does the legal domain lag behind those that aggressively rely on metrics to refine their business models and processes?
There are two reasons for the lag — lack of experience applying business principles and lack of understanding of the value of the metrics to the client relationship. It’s no secret that lawyers are not business minded typically. It’s not what we are trained to be, so that’s not a fault, just a fact. Lawyers who know business seek out learning in that area. Metrics or KPI’s that are used by business areas routinely have rarely been discussed in the structure of law firms except at the executive committee or practice group level. That needs to change. We are just starting to see business people being brought in to run firms over the last few years. That is a good start.
Firms don’t appreciate how valuable metrics can be to clients AND to the firm’s practice. The biggest challenge in the practice of law is showing value because legal is a drain on a business. It never adds back to the bottom line. If a firm can accurately budget for discovery based on metrics from previous matters, there is enormous value there. There is also the pressure to go, go, go and rarely the time spent to de-brief. Clients don’t like to pay for the de-brief — they want billing to stop as soon as the matter resolves. There is significant value in the de-brief and defining of metrics, but it can be just a cost of doing business for firms and that’s not a favored approach always. Business people de-brief and look at the numbers, and lawyers should too. Can you imagine a marketing department spending a million or more dollars on a campaign and never looking to see whether the campaign improved sales? That’s what lawyers do most of the time. We have to change that thinking to more of a business approach.
As you look back at eDiscovery over the past year, what stands out in your mind as the most positive and/or negative development(s)?
The one thing that stands out to me is how far behind the curve many lawyers are with eDiscovery. We are talking about blockchain, cybersecurity and privacy now as if eDiscovery is old hat, and I go to firms that are still trading paper and pdfs. The ball is not advancing as it should be, and we have to change that.
As a judge at RelativityFest this year, you were exposed to the innovative efforts of both law firms and vendors. What area do you think is the most ripe for innovation in the upcoming year?
This was my first year as a judge for the Innovation Awards, and I was very impressed not only with the work that Relativity puts into encouraging development on its platform and the awards, but the creativity of the entries to solve real problems that cost a lot of money. (Just to be clear, I was not paid to be a judge.) The Innovation Awards are focused on clients of the firms and providers that use Relativity — I’d like to see innovations that can be leveraged for any platform by any size client, and not just for large eDiscovery matters. Mobile device collection and data review is one area that needs help. The cost of tools to collect the data is too high for the average case and the reports provided by many tools are not useful to lawyers out of the box.
I also want to see more of the lawyering components built onto review. If you want lawyers to use review platforms, put the things we care about in them — better ways to organize hot docs folders or deposition notebooks to prepare. Review platforms are generally designed to facilitate review of thousands of documents. Once that’s done, we want to be able to leverage what work has been done within the platform but we need better views.
What change would you most like to see in eDiscovery during the coming year?
I want to see more lawyers understanding the potential of using the variety of sources of ESI available to help their clients resolve matters in their favor and doing it. We had a case this year where just asking for the audit trail produced a settlement because it showed we knew how to prove the other side’s story was a hoax. There is tremendous power in helping your clients solve business problems by knowing what is available to show facts in a case.
Kelly Twigger is a Principal at ESI Attorneys, an Information Law and eDiscovery law firm in Colorado. She writes and speaks frequently on the topic of ESI and is a passionate advocate of teaching lawyers and legal professionals how to think about and use ESI to win their cases. She can be reached via email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.