Q & A with eDiscovery Expert Kelly Twigger

Recommind Admin
January 8, 2015

Among the many talented lawyers throughout the eDiscovery industry, Kelly Twigger of ESI Attorneys stands out for her legal and technological expertise. Before founding her own eDiscovery law firm, Kelly was an accomplished litigator and eDiscovery practice leader at Quarles & Brady. She is also a technological pioneer, having developed the eDiscovery Assistant™ app for the iPad that helps direct subscribers through the eDiscovery process. In addition, Kelly is a published author and noted blogger. I recently spoke with Kelly about a variety of eDiscovery issues affecting both litigants and lawyers. 1. Tell us about your background and how you developed your expertise in eDiscovery? I’ve always had a love of technology and an affinity for understanding complex systems. These interests and skills proved invaluable when I began my journey into the world of eDiscovery. After attending the first ABA eDiscovery seminar in New York with Judge Scheindlin in 2004, I immediately knew that ESI would have a tremendous impact on the law. Taking what I learned from the seminar and from my experience dealing with ESI as a litigator, I helped to develop and grow the firm’s Records Retention and Electronic Discovery (RRED) practice group. By 2006, the firm’s RRED team had 23 people including attorneys, litigation support, knowledge management, and other key folks who worked together to identify issues, evaluate technology, and find solutions both internally and for our clients. In 2009, I formed ESI Attorneys to work exclusively with clients in eDiscovery and information law. 2. How have social networks, mobile devices, and cloud computing impacted the eDiscovery process? The world where lawyers just go to witnesses to find information is over. The witness helps inform you, but it’s now incumbent upon lawyers to identify where key information might be stored and how to get it. This is particularly the case with social networks. Each social media platform is different – you have to understand and weigh the ins and outs and whether the fight to get it is worth it. You have to do the bean counting for each aspect of eDiscovery and weigh the value vs. the cost. Regarding mobile devices, each one is different in terms of what it might store and the retention rules imposed by cell phone service providers. And the sheer amount of data stored on these devices is overwhelming. Consider all the information that’s on your phone right now – photos, text messages, email, location tracking, etc. Lawyers need review tools that both process and handle that data effectively. The cloud is hard because often your data is within your custody or control legally, but not physically and you need a plan to get it. There’s no exception for data stored in the cloud – courts have said the same obligations apply. Most clients don’t know the issue exists – because legal doesn’t know that IT outsourced email to the cloud, much less have a plan for how to get it when needed. 3. What eDiscovery technologies have you observed organizations successfully use to prepare their cases for trial? Our clients use multiple technologies – there’s no one magic process that allows you to manage, review, and organize information for trial out of the box that we’ve found. Some clients use just one review platform and what we use to cull data in the early stages after collection might vary. Some clients need a more advanced review platform for larger matters that incorporate concept analytics and/or predictive coding. With respect to law firms, it appears that firms are still trying to get used to the notion of outsourcing and seeing its value vs. having one platform in-house and using it even if it’s not the best solution. 4. What effect – if enacted – will the proposed FRCP amendments have on your clients? Practically, I don’t know that the new amendments will have a big effect. The changes, with the exception of Rule 37(e) regarding the ability to get sanctions for negligent destruction of ESI, are mostly cosmetic. I’m not seeing most lawyers take advantage of the rules from 2006 yet – so the jury is still out on what effect the latest revisions will have. For eDiscovery lawyers, we have a few more arrows in the quiver on arguing proportionality, but that’s a mostly theoretical discussion or reserved for huge cases. The changes to Rule 37 – requiring bad faith to secure harsh sanctions – have the potential to unfairly impact plaintiffs, so we’ll see how it plays out and how judges will or won’t enforce it in a particular set of circumstances. The biggest takeaway from the new amendments may ultimately be that you better make sure you have someone who understands them and can advise your business on them before there is trouble. 5. What are the biggest eDiscovery challenges that companies will face in 2015? You’ve identified several of them – the use of mobile devices, cloud based tools, and social media. Striking a balance on how to address those issues in the business context is the key issue right now and active management of eDiscovery is critical to cost control. The reality is that the workforce is more mobile and virtual than ever and thought needs to go into how that affects information created and stored by businesses, and the resulting legal implications such as BYOD, discovery of individual’s mobile devices, etc. Avoid letting the tail wag the dog – business considerations come first. Legal’s job is to support the business and to thoughtfully consider how to do that given eDiscovery and other information law considerations (e.g., privacy, security). Thank you, Kelly. We wish you the best in your practice.