Avalon will be regularly highlighting one of our expert eDiscovery clients in a spotlight blog. This way you don’t have to just take our word for it.
This spotlight is on Jennifer Dowdell-Armstrong, Member at McDonald Hopkins, LLC in the Litigation practice group. She focuses her practice on federal complex commercial litigation, governmental investigations and white collar criminal defense, and antitrust and Foreign Corrupt Practices Act litigation, compliance counseling and internal investigations.
What part of the e-Discovery process do you find most challenging and why?
I view the identification and collection of relevant data as one of the most challenging aspects of e-Discovery. Overly broad search terms designed to find relevant data on employees’ corporate desktop or laptop computers can easily result in a “document dump” that unnecessarily drives up litigation costs and yields minimally useful data.
The other side of the coin, however, is the emerging e-Discovery challenge of identifying and preserving mobile data. According to a 2014 survey by the Pew Research Center, 90% of American adults have a cell phone, 58% of American adults have a smartphone, 32% of American adults own an e-reader, and 42% of American adults own a tablet computer. These devices, which can be company-issued or employee-owned, store potentially highly relevant evidence, such as texts, call logs, Internet search history, voicemails, GPS information, and photos. Such mobile data can be of far greater relevance than data obtained from a corporate e-mail account because employees may express thoughts in a text or other medium they would never consider communicating in a more formal context. But some of this mobile data can only be retrieved on the device itself, which can be difficult to get and subsequently extract information. And compounding this problem is the implication of privacy concerns, the need to separate private and business-related information, and the sometimes ephemeral nature of the mobile data.
What is most important to your firm when working on a case that involves e-Discovery?
My firm strives to be both effective and efficient in working on cases involving e-Discovery and constantly looks for new and innovative ways to achieve this goal for our clients. For example, the nonprofit RAND Institute for Civil Justice recently conducted a survey that found 73% of e-Discovery costs results from document review. To explore ways to reduce this review cost, I recently worked with Avalon in a document-intensive case to obtain pricing information about predictive coding. Because the use of predictive coding would result in a significant cost reduction for our client – at least $200,000 — I worked with the other side to agree to a mutually acceptable protocol. The case was later settled with a great result for the client.
How do you educate your clients on e-Discovery related matters? Or explain to them what needs to happen?
In educating my clients on e-Discovery related matters, I first work to both identify key personnel that possess critical knowledge of the important factual issues in the case and to understand my clients’ information systems. This process involves delving into the case as soon as possible to identify hot issues, interviewing key custodians, and determining how the client organizes its electronic data. I then work with the client to devise and implement document retention policies to collect and preserve relevant data. This process also allows me to understand what types of key data and information the client wants from the opposing side in each case. I then typically send carefully tailored and detailed preservation letters to opposing counsel at the outset of a new matter to advise them of their specific preservation obligations so this evidence is not lost. To ensure my clients are educated regarding e-Discovery and there are no surprises, I keep my clients involved in the e-Discovery process every step of the way and explore potential cost saving options at every turn.
How have you gained your knowledge on e-Discovery?
I gained my knowledge on e-Discovery through significant litigation experience on factually complex and document-intensive cases, outside reading on emerging e-Discovery case law and trends, and working with a great vendor.
What have been the biggest challenges for you when dealing with a less eDiscovery savvy opponent?
Opposing counsel who are not knowledgeable about e-Discovery and who do not understand their clients’ information systems cannot give appropriate guidance to their clients regarding the preservation of digital data, which can result in spoliation of evidence. Such opposing counsel may also drive up litigation costs by refusing to consider more carefully tailored search terms or resisting predictive coding or other innovative ways to reduce document review costs. To combat these challenges, I typically discuss e-Discovery options with opposing counsel at the beginning of each case, try to understand their position, and work with them to figure out mutually beneficial solutions.
If you liked this blog article, you might want to check out our eDiscovery Spotlight Featuring David Hancock, GrayRobinson