Last updated on February 18th, 2019
Jacob Tingen: Thank you and welcome to Law Talk. We’re here today with Trent Powell. And we are discussing today for Law Talk about discovery in litigation and lawsuits and how that works. So this is Law Talk with Tingen and Williams. We do free consults every Wednesday at eleven. You can call in, 804-477-1720. Or if you leave a comment on Facebook live, we’ll try to get to you there and just kind of respond to any questions you may have. But today I’m with Trent Powell, who is a partner here at Tingen and Williams. So hello.
Trent Powell: Hello everyone.
Jacob Tingen: So that’s Trent. Trent helps us with our immigration practice. He does some wills, trust and estate planning. And has some pretty significant experience with E-discovery, which is electronic discovery. And that’s kind of what we’re here to talk about today. So as an introduction to the topic, the first thing that a lot of people may not know is when you are in a lawsuit, it’s very common, in fact it’s required by the law to show the other side the cards in your hand so long as they’re not privileged information. So if somebody sues you about something and they say “Well there’s this contract, and you’ve got a copy of the contract, that you made with the person who’s suing you.” You should show it to the court, and show it to the other side.
And so that’s kind of basically how discovery works, right? I mean that’s the basic concept?
Trent Powell: Yeah. That sounds good.
Jacob Tingen: So but one of the things that has evolved over the last decade or so is electronic discovery. So why is E-discovery or electronic discovery such a big part of litigation today?
Trent Powell: Well like you touched on, I mean the way that everything is done now and has gotten more and more so over the last ten to fifteen years is that all business is conducted electronically or digitally. I mean email has replaced the memo. And drafts are done within a software, you know like Word or Excel and not printed out and touched on with a pen or a marker. And so when companies are sued, a lot of the information that is [inaudible 00:03:08] is not physical. It’s completely digital and electronic. And so there’s a whole structure in place now to retrieve the documents and to sort through them, because it’s a massive, massive amount of data. As you can imagine. And then to review and produce the relevant documents, those that comply with the discovery order.
Jacob Tingen: Okay so you mentioned massive amounts of data, massive amounts of documents. Like how much are we talking here?
Trent Powell: Well I’m not completely fluent in the computer lingo. I mean but you’re talking about scores of terabytes of information coming from file servers in companies from the personal hard drives, from phones of people. I mean you can imagine that if a lawsuit encompasses the R&D, the marketing, the sales departments of a company. I mean you’re talking about hundreds and hundreds of employees at some of these large corporations. And every bit of information, that’s all on their computers or the companies file server would get reviewed.
Jacob Tingen: Right so I mean I’m remembering something about E-discovery in the context of just the volume of email that’s generated each day in the average big company. That more than a million emails can be generated each day. And those are potentially subject to being searched and reviewed. I mean is that correct?
Trent Powell: Oh yeah that’s absolutely correct.
Jacob Tingen: Depending on the lawsuit?
Trent Powell: Yeah absolutely.
Jacob Tingen: So is E-discovery limited to certain kinds of lawsuits or is it just kind of all reaching or what do you think?
Trent Powell: Um from my experience I only worked on cases that are pretty large in scale. But I do know from working at various firms and companies that they can be pretty small in scale too. So it’s pretty all encompassing.
Jacob Tingen: Right yeah so I recently read something about, and I’ve actually been curious if you could use this as data in traffic court. But a lot of cars now have computers. They can tell you how fast you’re going. And in bigger lawsuits or personal injury lawsuits I’ve read that attorneys will try to introduce the evidence of the onboard computer on the car itself to determine who was speeding in those kinds of things. So I’ve actually kind of wondered if that would be a front line of traffic defense to pull of your car computer and say “No officer I wasn’t speeding.” But I don’t know do you think that would work or what do you think?
Trent Powell: I don’t know if it would now but I definitely would foresee it being able to work. I don’t know why it wouldn’t.
Jacob Tingen: Yeah I mean it seems like a pretty good strategy. Of course unless you were speeding, in which case it’s kind of the silver bullet that the other side would need.
Trent Powell: Yeah that’s true too. It could definitely work against you.
Jacob Tingen: Well I’m kinda curious that they don’t do it already. But anyway, returning to the topic. So this idea of big litigation and lots of documents to look at and discover. But this isn’t just the domain of big companies, but that’s kind of where it’s hitting the headlines because it can be a very expensive process.
Trent Powell: Oh yeah.
Jacob Tingen: Can you talk about that a little bit?
Trent Powell: Sure so obviously it starts with a discovery order from a judge in a case and they provide the scope. And they can even provide rules regarding protecting certain information. For instance, lets say there’s a company that gets sued over the use of products. But they’re also developing future products to be used in that same line. But obviously that’s proprietary information and it only goes so far as to proving a case. Because obviously these products don’t exist yet. But they can still be part of the discovery. But they can be assigned higher confidentiality level. For instance. So those are the type of rules that you start with by using the discovery order.
And then the defense council, they’ll contract either a company or they might do it directly themselves depending. But there’s a … There’s proprietary software, a variety of companies make them. And those then those companies are working with he attorneys, you know they go and collect the data, either off a file server or a computer or hard drive. And they put this massive amount of data into their database and filter it. They run search terms over them. And they get keywords that they run over the data. And that helps narrow down the amount that actually has to be physically viewed. You’re able to … You know you can be cast a very wide net with regards to what qualifies as a keyword. And if a document doesn’t hit on any of those words, then it’s safe to assume that it’s not relevant.
Jacob Tingen: Not relevant. Yeah.
Trent Powell: And so at that point, you still are left with a large amount of data usually. And those can be reviewed by people working for the defense council or contracted with the defense council. There are various companies and firms that do this E-discovery thing.
Jacob Tingen: And typically it’s attorneys that end up reviewing these documents?
Trent Powell: It is, yeah by and large its people with law degrees or that are licensed.
Jacob Tingen: Yeah to practice law.
Trent Powell: Yeah. And so what’s left gets split up and the proprietary software is still used. And you actually a person sits there and looks through each email, each word document, each emails attachment and sees if indeed the document in question is relevant. And if confidentiality levels are involved in the case, which not all of them are. Then you assign a confidentiality level. You look for information that has been agreed upon in the discovery order to be redactible for instance. And also you’re looking for information that would be considered privileged, specifically attorney/client or work/product information.
Jacob Tingen: Right well so just to kind of give an example, what kinds of information would be redactible? What kinds of information would be privileged for people who don’t understand what that term means.
Trent Powell: Sure so in my experience, the most commonly redacted information, well actually so there’s two in my experience. One would be information that’s not about any of the products in question. Obviously these large companies can have large umbrellas and produce lots of different types of documents or products I should say. And if the lawsuits only about one specific product, then any proprietary information about the other products, you know these sides can agree can be redacted.
Jacob Tingen: Now just to give some context to what you’re saying about products. You’re talking about litigation in the context specifically of like products, defective products and product liability, that kind of stuff.
Trent Powell: Yeah product liability.
Jacob Tingen: Defective products. Okay. So but these E-discovery also takes place in sexual harassment, takes place in virtually anything. And it becomes, it’s a big news headline when it’s a big company because there’s lots to discover.
Trent Powell: Yes.
Jacob Tingen: But in the context of a products liability case maybe where redacting information about future products, trade secrets right?
Trent Powell: Yeah.
Jacob Tingen: Intellectual property, stuff that just shouldn’t be revealed.
Trent Powell: Yes.
Jacob Tingen: But also in the non-products liability context, not necessarilly non relevant information but just stuff that doesn’t need to be produced or to what extent?
Trent Powell: Well that’s, that all depends on the agreement in the discovery order. But sure I have experience of working cases where you know private information that’s irrelevant to a case-
Jacob Tingen: Is agreed upon to be redacted.
Trent Powell: Yeah exactly.
Jacob Tingen: For privacy reasons generally.
Trent Powell: Sure. Yeah like you know social security numbers, stuff like that.
Jacob Tingen: Which makes perfect sense.
Trent Powell: Right.
Jacob Tingen: Um well so what about privilege. So I know what privilege is. But you know I don’t know that all of our listeners do. Privilege material is something that we do talk about in law school and that lawyers deal with. Can you address that a little bit?
Trent Powell: Sure it’s been a long time since I’ve had to review exactly what attorney/client privilege. So maybe you can help fill in any gaps that I’m-
Jacob Tingen: Okay, alright.
Trent Powell: So any communication regarding a case between an attorney and their client is considered privileged.
Jacob Tingen: Right.
Trent Powell: And so in that sense there could be an email chain where only part of the email chain is protected information, is privileged information. And so those emails in the chain would be redacted while the rest of it would be produced.
Jacob Tingen: Right. Now isn’t it common practice, or maybe at least it should be, to frequently I mean I’ve heard this advice and I think it’s pretty decent advice. Even when there is no litigation outstanding too and a lot of marketing decisions or emails that get sent around the office to carbon copy the attorney, to CC the attorney so that we can make the claim in the future as a strategic decision that you know the communication in question was privileged. Even if it wasn’t necessarilly pending litigation. What’s your thoughts on that?
Trent Powell: My thoughts on that would be that that probably wouldn’t hold up in my experience. Simply CC’ing an attorney without asking for legal advice pointedly or even you know not directly. And certainly if the attorney doesn’t respond then you would have a hard time saying that’s actually privileged information.
Jacob Tingen: That there was any advice given.
Trent Powell: Yeah. Because it’s not just any communication to do with legal advice. So it’s not anything that’s seen and read by an attorney can qualify as privileged information.
Jacob Tingen: Right.
Trent Powell: That’s my understanding of it.
Jacob Tingen: And I would agree with that. I think it is a good strategy to implement but the email would have to be relevant to a legal matter for that to apply. And so I think that it’s important that you bring out that it doesn’t necessarilly work if we’re not talking about something legal.
Trent Powell: Yeah that’s correct.
Jacob Tingen: Yeah so lets talk about, you mentioned earlier a litigation gets started and you mentioned about how all of this data gets collected from all these different sources, all these different employees. What can you tell us about litigation holds? Like this concept that as soon as a litigation is threatened, everybodies gonna stop don’t shred anything. Right?
Trent Powell: Yes.
Jacob Tingen: Okay so why is don’t shred anything good advice?
Trent Powell: Well I mean you don’t wanna be seen as trying to hide information or destroy information that is discoverable per the discovery order.
Jacob Tingen: Right or per a potential discovery order too right?
Trent Powell: That’s correct too yes. Exactly as soon as, yeah that’s true. It doesn’t even have to have occurred yet. But my experience is that companies generally keep their records for a certain period of time anyway. But yes they do send out reminders or instructions I guess to hold onto any relevant, any potentially relevant documents or all documents for that matter in the even that they are relevant to a case.
Jacob Tingen: Now quick question. So just spoiler alert, I did write a paper on E-discovery.
Trent Powell: I know. I don’t know why I’m doing the talking here.
Jacob Tingen: Because you have more experience in the actual industry than I do.
Trent Powell: That’s true.
Jacob Tingen: So both Trent and I know a little bit about E-discovery. But my paper was published in the University of Richmond School of Law, the Journal of Law and Technology. So I’ll post a link in the show notes to the podcast. But just to kind of ask a question about this. When oh gosh, kinda lost my train of thought. When it comes to these litigation holds there’s this concept that you can’t destroy information because of the litigation. Right but isn’t it good advice to encourage a company, if you were counseling a company to set up a timeline for when they destroy information.
So for example if I’m a big Pharma company and I’m worried about products liability lawsuits, it becomes my policy and it’s a good idea to make a policy where I delete information on a regular basis, so that no one could accuse me of having deleted the information because of a pending lawsuit. But just because it’s what we do every three months. Everything older than three months is gone. I mean isn’t that a good way-
Trent Powell: Three months?
Jacob Tingen: I’m just asking what’s a good timeline? I mean-
Trent Powell: Oh I don’t know. You know maybe you’d know better than I do. But often it’ll all come down to reasonableness and so I don’t know if there is a set time. Is there? Do you know?
Jacob Tingen: I don’t know. I mean I just think it really comes down to the needs of the company. And I mean how long do you actually need to hold onto email?
Trent Powell: Yeah I mean that’s a great question. I don’t know. But you know like I said so much of this comes down to what’s reasonable. And I think a judge would have a hard believing that three months would be reasonable.
Jacob Tingen: Oh okay so what would you recommend in terms of … I mean if attorney Trent Powell was advising a client, how often should I delete my emails or what time period does my data just disappear?
Trent Powell: I would say at least five years.
Jacob Tingen: At least five years.
Trent Powell: I mean just based on my experience from what I’ve seen yes.
Jacob Tingen: Okay.
Trent Powell: It’s not based on anything other than that though.
Jacob Tingen: Right. So companies don’t do a good job of clearing out their emails.
Trent Powell: No, not from what I’ve seen. But that’s not to say … I mean but they had … It’s not like there’s a reason to, like there’s a practical to keeping them too because they can reference back to meeting notes that happened several years prior, decisions that were made at one time that they’re looking to see what decision they should make now. I mean so there is value in keeping this. I mean certainly R&D. I mean [crosstalk 00:19:16]-
Jacob Tingen: Data needs to stick around. So let’s talk about the difference between lets say email and [inaudible 00:19:22] critical documents.
Trent Powell: Okay.
Jacob Tingen: So I mean how much should be kept or stored or sent?
Trent Powell: I don’t, I’m not really sure. I guess that all depends on what company it is and what area of the company it is.
Jacob Tingen: Right. Yeah so I mean as a typical answer in a lot of law circles is it just depends.
Trent Powell: Yup it just depends and reasonable.
Jacob Tingen: Yeah so reasonableness and it depends on the industry.
Trent Powell: Yeah.
Jacob Tingen: Well so let’s keep talking about just some different scenarios. You mentioned redactible. You mentioned work product. How much do these kinds of things cost? I mean E-discovery to search millions of documents with attorneys every day?
Trent Powell: Well I wasn’t on the end of that decision where I would see the overall cost of things. But you’re talking about paying a team of attorneys an hourly rate. You’re talking about paying a team of attorneys to manage and to do like quality control. If its not done through the defense council then there’s part of the legal team that directly works with the client that would also be managing and overseeing and doing quality control. You’re licensing the software, which I can’t imagine would be very cheap. So I mean there’s-
Jacob Tingen: It’s a pretty significant cost.
Trent Powell: Oh yeah. I mean I could imagine it being extremely expensive to comply with these discovery orders and E-discovery.
Jacob Tingen: Right so for a company to even bother going through E-discovery, the threat of going through large scale E-discovery is enough for many companies to just settle right?
Trent Powell: I would speculate. So yeah I’m not sure exactly but I would definitely assume that that’s true.
Jacob Tingen: Well so lets talk a little bit about the efficiency of E-discovery. So you’ve mentioned how in a lot of different scenarios you essentially hire a bunch of attorneys to manually review documents. But you’ve also mentioned softwares. And then there’s, from what I understand some hesitance from judges to accept that certain softwares are effective. Whereas, I mean what’s your experience? Are the softwares better at this than the humans?
Trent Powell: At this point no. In my experience. But it’s definitely … I mean I think it’s an achievable goal in the future.
Jacob Tingen: Right.
Trent Powell: Certainly as technology progresses, problems like this seem to be solved. What’s, predictive coding, that’s what its called. And that’s where a certain subset of documents is reviewed by human coders for lack of a better word. And that information is inputted into the software. And based on that, the software code or you know reviews the rest of the documents. It’s called coding, because you’re assigning a code to each document. So that’s what I mean by coding, but reviewing a document is then done by the software. And from what I’ve seen, at least currently that’s not really a viable solution but like I said, I think that’s something that’s achievable for the future.
Jacob Tingen: Right. So it definitely depends on the E-discovery vendor you choose to use.
Trent Powell: Sure.
Jacob Tingen: And the software tools available. And of course there are always advances. I’m a big advocate of the technology side. But I definitely understand the appeal of having attorneys who are trained and who understand privilege and work product and that kind of thing. Well so that’s about it. If you are listening in today this is Law Talk with Tingen and Williams. You can call or comment for a free consult, we’re available every Wednesday at 11 a.m. to just talk about different legal topics and you can listen in. Or if you want to talk about any of our other practice areas, we do immigration, criminal, personal injury and a number of other areas. Give us a call or make a comment on Facebook, we’d be happy to answer your questions. And thank you Trent for coming on.
Trent Powell: Yeah no problem.
Jacob Tingen: Alright, thanks man.
Trent Powell: Bye.