e-Discovery in Modern Civil Litigation

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews a lawyer turned manager of e-discovery at one of the largest law firms in the US. He talks about the role of electronic document discovery in modern civil litigation.

Debby Merritt:

I am talking today with Nat Croumer, a graduate of the University of Pittsburgh School of Law. Nat is the discovery attorney administrative manager at WilmerHale, one of the largest firms in the United States.

Nat began his legal career in 2001, working as a document reviewer. He then worked for seven years as an associate at a toxic tort defense firm. The DiscoverySolutions department that Nat runs now at WilmerHale is an example of insourcing. Instead of partner-track associates doing labor-intensive document review, and instead of sending that work to firms specializing in e-discovery, WilmerHale has created its own document review center in Dayton, Ohio, a city with relatively inexpensive real estate. Salaries for discovery attorneys are also lower than for partner-track associates, saving money for the firm and its clients.

Nat, some of our listeners haven't been to law school yet. Can you give them a brief background about what discovery means?

Nat Croumer:

Discovery is the time period during an investigation or litigation in which either or any of the parties are entitled to learn about the information that the other parties have that is relevant to the facts of the case or that they may use as evidence to support their theory of the case. There are differing rules for discovery according to each jurisdiction, federal, state, and county. But the gist of it is it's the time period when any side is entitled to learn about the theory of the case and the documents and facts that support the theory of the case that other parties may have.

Debby Merritt:

This surprises non-lawyers sometimes, because they're used to watching television programs where the parties pull a rabbit out of the hat at trial. That's not really what we do in litigation these days.

Nat Croumer:

No, the rules are designed to entitle parties to have the information before going into court so that they can appropriately strategize. At the end of the day, the facts of the case are what bear the matter out. The rules are very liberal about what needs to be shared and what is required to be shared. There are certain objections that you can put up to certain requests based on either confidentiality or you can ask for protective orders so that the material doesn't become public and it's only shared amongst the parties. Or you can file objections based on a privileged communication between attorneys and clients. Certain things protect certain information, but for the most part it's very liberal in terms of what material needs to be shared with the other parties.

Debby Merritt:

And we're talking here primarily about civil cases.

Nat Croumer:

Yes, we're talking primarily about civil cases. Yes. And that's the discovery that we are involved in here.

Debby Merritt:

And when we're talking about civil cases, I understand that the volume could be just huge. Tell us a little about that.

Nat Croumer:

In the technology age, there's a lot of information that is able to be discovered. Tweets, IM, text messages, email, and so if you can think about how many email messages you send a day or how many texts you may send on a business phone or tweets or anything of that nature, and then you multiply that by days and months and years. Not to mention the memoranda that is put together by various departments, the research papers that go into certain things. There's a ton of information that needs to be reviewed.

When I started my career almost 15 years ago, a lot of this was done by paper and I went into a room my first day at my first job, was very excited and I was shown a room of 55 bankers boxes of documents and I was told to take the information and summarize it and let the partner know what information we had and what would help our case. That took about a year to do. And if anybody moved a box or put a document back in the wrong place or changed things around that threw everything off.

Nowadays, with the massive amounts of information we use, we use the electronic databases to feed all of that material into the database, use various filters and search terms to come up with a truly relevant population of documents that are ordered and housed correctly and appropriately, and that can be found easily. It makes the process much smoother, much faster and much easier, and at the end of the day, much more cost-effective for clients.

Debby Merritt:

So when attorneys today do discovery, they primarily are working with electronic documents.

Nat Croumer:

It ranges widely. My experience is with larger firms and to a large degree that's true with the larger firms. Smaller firms may still do a lot of paper discovery, but medium to larger firms are very heavily involved in electronic discovery. So what they're looking at is usually in an electronic format. Even if it began life as a hard copy document, it probably ended up when they got to it as an electronic document.

Debby Merritt:

And that is what we call e-discovery.

Nat Croumer:

Yeah. And using the database tools to code the documents for relevant issues, for confidentiality, for privilege, to make redaction...

Debby Merritt:

And just to put the amount of documents further in perspective, in civil litigation, each party is doing this in two directions. They both have to produce documents and also look at the documents.

Nat, tell us now about the discovery group that you supervise at WilmerHale.

Nat Croumer:

We have approximately 70 discovery attorneys on site here in Dayton. Wide range of experience and background levels. We have some people who are brand new out of school. We have some people who have worked in other aspects of the law and chosen this as a career change. And we have some people who thoroughly and completely enjoy electronic discovery review and they've chosen this as their career path. Those lawyers all work together collaboratively to perform a number of tasks for our both internal and external clients. Our internal clients are the other lawyers in the firm that we work with in other offices and our external clients are obviously our clients.

The activities that we perform for these clients include what we call first-level review of documents for privilege, confidentiality, relevant issues, basic redactions... It can involve second-level review work, which is reviewing documents that have been first-level reviewed by a third-party vendor. It can also involve creating privilege log entries, performing research, and writing legal memoranda, assisting with deposition prep materials. So a wide range of different functions that we perform for those clients.

Debby Merritt:

Let's talk through a typical day for a relatively new discovery attorney at WilmerHale. I come in, have my coffee, say hello to people...

Nat Croumer:

Well, if you're a new discovery attorney before you've gotten to that first day where you have your cup of coffee and get into your work, you've been through an extensive week-long training program that includes everything from how to appropriately use our firm's document database systems to how to use basic technology for review tools, to appropriately address an email to any level of anybody within the firm. It's a very robust training program so that you'll feel, when you start your first day, like you're very well-prepared to take on the work.

As you start your work, most of our attorneys are staffed between two and four cases at a time and at the beginning of each week we will allocate each of those attorneys how many hours they need to spend on each of those various projects. We use those projections based on past histories of how long it should take to do a certain type of review, how quickly those reviews happen, to project for case teams when we think we might be able to finish their review, so those hours are very important.

Once you get into the review tools, you look through the documents. Sometimes in important terms or privileged terms are highlighted, sometimes they're not, depending on the database systems that's used or how the review has been designed. You're looking for things like privileged information, confidential information, important terms or relevant theories to the case, and denoting all of those in what we call a coding panel. So the coding panel will be a short description of something that they're looking for in the case and if you see that in the document, you select that, that you've seen that issue. An example of how to help the case team is if you're working in a 3,000-page spreadsheet, you want to note in your notes on the page where you found the relevant terms so that the next person doesn't have to look through all 3,000 pages to find what you found. So we try to do our best to be as helpful as possible in the notes that we leave for people who are reviewing the documents.

Debby Merritt:

How did the attorneys know what to look for? Do they get an initial briefing on the case? Are they in communication with the other attorneys working with the client?

Nat Croumer:

Before any case starts in our group, there is an initial substantive training call and there's a technical training call.

With the substantive call, each of the discovery attorneys has been previously distributed what we call a review protocol that gives the background and information on the case and what's important and very often describes what each of the relevant terms that is in the coding panel, what they're looking for for each of those relevant terms, so that the discovery attorneys have a very good idea of what's involved in the case and what to look for and what's important. Then we have a meeting, usually a teleconference or a video conference, sometimes an in-person conference, with the case team in the other offices to discuss anything that's vague, anything that's ambiguous, anything that needs more clarification so that when we start the review everybody is on the same page.

There's a technical training call so that if you haven't used a particular review tool before that that we're using in that review, you understand the technology and how to use it appropriately.

Then throughout the course of the case, each of our matters has a team lead in the Dayton office on that and they're the point person for the case team for any questions that come up, for any changes in strategy during the review that need to be communicated to the discovery attorneys. They're the keeper of the Q&A log, they are the liaison between the case team and the discovery attorneys, so that there is a constant flow of information about the status of the case and where it's going and what is new and important.

Debby Merritt:

Did discovery attorneys also have the chance to find that one document that breaks open the case? Are there ever eureka moments when somebody says, "I found it"?

Nat Croumer:

There are often eureka moments. If you think about it, you're talking about, at the outset of a case, millions of pages of documents and we use the technology and the filtering software and the search terms to hold that to a more manageable relevant number of documents to look through. But discovery attorneys really are the ones who are the front line of seeing the documents and then passing up to the partners and the associates and the counsel what we are seeing. And so partner or counsel or senior associate or associate can discuss things with their client, can come up with a theory of the case, and sometimes at the end of the day, often the documents will support that, but sometimes there's something in there that we'll need to require that our strategy be adjusted or that we found, so to speak, the golden egg.

Debby Merritt:

What would you say is the biggest frustration that you hear from your discovery attorneys?

Nat Croumer:

I don't know that I would necessarily call it a frustration. It's something that's unique to this particular type of work and it's not true just in our firm. It's true in many firms that engage in this type of work. These are not partner-track positions, so there's not a progression from discovery attorney to associate to senior associate to partner. So if somebody's ultimate career goal is to make partner in a firm, this is not the path to get you to that point.

Debby Merritt:

And you mentioned before that some people stay on indefinitely as discovery attorneys.

Nat Croumer:

Yes.

Debby Merritt:

I guess one of the benefits, you talked about how this is not a partner-track position, but that means that there's no up and out policy, correct?

Nat Croumer:

There are of course standards that we hold our attorneys to, our discovery attorneys, just as would be true of any firm or any attorney role. And as long as the discovery attorneys are meeting those standards with regard to their hours requirements, with regard to the quality of their work product, their professionalism. All of those things being met, there's no up and out policy that we have, and I'm sure that's true of many discovery attorney groups that other firms may offer as well.

Debby Merritt:

Now, the discovery field also has lots of different types of positions, as I understand it. WilmerHale and a few other firms are hiring discovery attorneys on full-time indefinite with benefits and a set salary. Other firms, though, are hiring people on a contract basis. Could you tell us a little bit about the different options people might find?

Nat Croumer:

So just a little clarification on the WilmerHale position, mentioned the word contract briefly, I want to make a distinct differentiation. WilmerHale discovery attorneys are a full-fledged attorney within the firm. It's just a different type of practice, even though it's not a partner-track position, but they are employees of the firm. They receive the same education and training and have the opportunity to enjoy benefits as a firm employee.

You mentioned contract attorneys as well. Different corporations, different firms will bring on what we refer to as contract attorneys on an as-needed basis. And those attorneys usually come through vendors that are basically, you call the vendor, you say, "I have a huge project coming up, I probably need 30 attorneys for four to six weeks who can get through this material." And these vendors have attorneys on call that they then staff to these businesses or firms for their specific projects and they work for those four to six weeks and then they're gone.

There is definitely a need for that type of work. One advantage that programs like our firm's, and there are a few other firms doing it as well, is that we find very often reviews will come back when there's additional information, when there's additional material that needs to be reviewed, when there are additional questions to be answered. Our attorneys who worked on the case initially are still here and have that foundational knowledge to move very quickly and find the answers to those additional questions without having to bring in a new crop of contract attorneys as you might have as an alternative who would then have to be retrained on the case and the materials, and it would delay finding the answers as quickly. So that's one of the key advantages of having an in-house program, but those are definitely some options as well.

There are also consulting attorneys and very often those attorneys are working with clients to talk about document preservation protocols, to work with clients on how to gather the information that we need to review, to helping them to select which review tool is best for their needs, to advise them on whether or not the review should be designed in a certain way.

This varies from firm to firm, but staff attorneys are often involved in the process as well and in certain fashions can best be thought of as a project manager who keeps the ball moving forward between the case teams, the partners, the associates, the council, lit support, discovery attorneys, the technology team to make sure that all aspects of the case are on point, that the review is being conducted as how it should on a daily basis, and that things are moving forward so that we get to our client what they need when they need it.

Debby Merritt:

That's very interesting and a useful breakdown. There's a real difference from the perspective of the lawyer who's applying for these jobs to understand that some discovery attorney positions like the ones with WilmerHale are full-time positions for regular lawyers, same benefits as other people in the firm. Others may be very ad hoc contract positions, but the lawyers who apply for discovery positions at WilmerHale should be aware that the salaries are lower than for the partner-track associates. These are not $160,000 positions.

Nat Croumer:

The salary and benefits are very competitive for the type of work that we do.

Debby Merritt:

That's what I would gather from the internet. Google suggests that the discovery attorneys in full-time positions are earning, at entry level, $60,000 to $65,000, which compares very favorably to other sorts of entry level work, but applicants need to be aware that it's not big firm salaries.

What about billable hour targets? Do the discovery attorneys have targets like partner-track associates do?

Nat Croumer:

As with most law firms, there are billable targets for our attorneys to hit. In the case of discovery attorneys, it is a 2000-hour billable target that we ask our attorneys to shoot toward. For the discovery attorney position, if you are engaged in work that is benefiting the client, if you are reviewing a protocol, if you're performing document review work, if you are doing any one of the number of tasks that we've talked about that are benefit to the client, you are billing back to the client.

Debby Merritt:

What about flexibility, Nat? Can discovery attorneys work flexible hours or work sometimes from home?

Nat Croumer:

Bearing in mind the annual target, they are required to be in the office between the hours of 9:30 and 4:00 because that's when most of the other attorneys in our other offices across the globe will need to be in touch with them. Other than that, they may come in earlier, they may stay later to get the balance of their hours in or they may work at home in the evenings or catch up on weekends.

Debby Merritt:

Are the hours fairly regular for discovery attorneys? Do they have as many crunch times as other types of litigation associates have?

Nat Croumer:

We try very hard to, as managers in the department, to maintain a work-life balance for the discovery attorneys. There are inevitably times in any firm when it's an all hands on deck situation and our discovery attorneys are involved in those instances. By and large, I think, having practiced as an associate for a number of years myself, I think it's a much more consistent work week than maybe 80 hours during trial or 90 hours during trial, and then 30 hours if work is light to be distributed around the firm. So it tends to be more consistent than a traditional associate path.

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