It’s time for legal teams to update their Electronic Discovery Reference Model (EDRM) practices to take into account new technology and a changing landscape, according to attorney Anne Kershaw of Reasonable Discovery®, LLC.
“I’ve gotten a number of comments on LinkedIn [about the way the EDRM is changing], with people saying things like, ‘Yeah, yeah, right. This is what’s happening. This is where we’re going. We have to keep it fresh. We have to keep evolving and we can’t get stuck,’” Kershaw told me via phone. “So that’s been really, really nice, actually.”
An article she wrote on LinkedIn details what she feels is an alternative EDRM, applicable in a changing technological world. I caught up with Kershaw shortly after her article was posted, and she was kind enough to answer a few questions about the model, her career in e-discovery, Reasonable Discovery ®, LLC, and how she sees the e-discovery process changing in the future.
Conversation has been edited for clarity
Exterro: How did you get your start in E-Discovery?
Anne Kershaw: In 1993, I was working in a law firm, representing IBM in what was called the “repetitive stress injury litigation.” All the keyboard manufacturers in the country were being sued, defending claims of product defect in the design of keyboards because, allegedly, keyboards were causing carpel tunnel syndrome and other hand and wrist injuries. I was the most senior associate and was heading up the discovery work. Standing in IBM’s corporate headquarters, I looked around and asked, “Can we have a database for these documents? Can we do this electronically?” And so we did. We built a database.
E: What was your legal and technical background before you got started in e-discovery? Did you have that database knowledge, a roadmap to build it out, or were you just starting from scratch?
AK: I was a young professional adult at the time that computers were becoming personal productivity tools and I saw the value in learning about them and how to use them. I remember I got my first Kaypro computer back in ’85 when I was in law school. It was as big as a heavy suitcase, but they called it a “portable computer,” and I needed it to get my law review article done. I think those in my generation who were in a position that had a need for computing power, a personal computer, which I did in law school, learned what we needed to learn to make use of it. While in law school I worked full-time in a downtown New York City investment advisor house, and personal computers were coming into play in a very big way for tracking the prices of stocks and bonds. Then there was the work with IBM. I was just in the right place at the right time, repeatedly.
E: So, regarding e-discovery, a couple decades ago, you started looking at building training around this stuff—a journey, a map, something like that.
AK: Yes. And educating. Seeing that the court rules needed to be changed, getting people aware, writing articles, encouraging people to be smarter. I mean, back then we were fighting just to have the data electronic. Law firms were printing electronic documents, Bates numbering them, and copying and producing them. We were just trying to get lawyers to get over that, to stop doing that, to realize the advantages of keeping the documents electronic.
E: Is that part of what led you to build Reasonable Discovery®, LLC?
AK: Well, I started my first firm, A. Kershaw, PC//Attorneys & Consultants, around the 2000 timeframe. I built a consulting practice, mostly e-discovery at first. We would be pulled into big cases where there were problems with e-discovery, or they were trying to figure out ways to reduce discovery costs. In addition to the Repetitive Stress litigation, I did a lot of work in the tobacco litigation, securities fraud, product liability MDLs, wage and hours class actions, antitrust investigations/litigations, insurance antitrust MDLs, and investment fraud claims.
I started Reasonable Discovery®, LLC in 2007 to be a document analytics firm, but I couldn’t really do much with it until we got the advantages of software as a service, elastic cloud computing, and screen share technology—all these things that allowed us to efficiently and cost-effectively start doing what we call “document investigation work,” the products of which are e-discovery, compliance, information governance, investigation, and facts. And we do that by having very smart, skilled people, lawyers who really know how to use the technology and be iterative and strategic in searching for the documents people are looking for, for whatever reason. We use the right blend of human skills and current technologies to harvest the facts and understand the information that matters. In this way, the money spent on the collection and production of documents is also actually producing knowledge that’s going to be used in the case in a proactive, productive, and defensible way.
E: What was the biggest opportunity you saw in building Reasonable Discovery®, LLC?
AK: The process of document review has always been very frustrating for many of us. Many of us who have done it and managed it and also understand technology and how it works, could see that lawyers are missing opportunities to do things faster and better – especially document review. Reasonable Discovery®, LLC is replacing and changing the way traditional document review is done.
E: How about preservation and collection of data today? You mention in your YouTube video that collection can often create problems.
AK: Well with respect to preservation, the biggest issue is that people still believe that they have to preserve in place. In the old days we had to issue legal holds, and we’d tell people not to delete things and to preserve things because we really didn’t have a way to efficiently, quickly collect what needed to be preserved and move it out. Now, we can do that. We can dig into our databases, we can search, we can iterate, we can understand what we have and take it, because taking stuff that you need to preserve is much safer than leaving it in an active environment. In addition, all of this can now be done vey inexpensively, so it makes sense to do it even if everyone believes that the case will settle or be dismissed. Also, now that we can go and get it quickly and inexpensively, and we can also store it inexpensively, it’s a much more defensible way to preserve. When you take it to preserve it, you’ve got it locked down and you can also look at it, see what you have, make decisions, understand if you need more, and explain what you have to somebody else.
E: What about collecting too much or too little data?
AK: The ability that we have now to, what I call iterate in place, in situ, in the system where the data is created or synced or imported, allows you to execute the iterative process I keep talking about, so that you can, for example, look at what you’re fetching, or find a key person and look at who they’re emailing and what about. You can make decisions so that when you ultimately do collect, you’ve got what you need. And if you find that you need more, with the in-situ model, it’s not a problem—you’ll get it. The problem with the traditional EDRM model was that you had to take it out and move it forward to see and understand what you had, so naturally you were overly inclusive, because going back was expensive and difficult. But with this new model of being able to search in place, you can identify what you need to take before you take it.
E: Why do you feel that the changes you made with your in-situ model more accurately represent the way e-discovery is performed?
AK: Well, “is” or “should be” performed? I see it as educational and helping people get comfortable with change. Lawyers are traditionally risk-averse and they’re only comfortable with doing things that have been done before. As I saw in the early days of my career, figuring out ways to handle changes in technology and evolving processes is difficult in the legal context. So I see this, in part, as a way to start a dialogue, get a debate going, and get people to start thinking about this and asking questions.
I put a creative commons license on the in-situ model diagram so that people can use it now with attribution, so that people can discuss it. I think it’s going to take a long time for these changes to take place. After all, even though everybody’s using email today, you’ve still got people using fax machines and listing fax numbers on their business cards.
E: And how do you see the crossover between e-discovery and data management/information governance generally? Where do e-discovery and data management converge?
AK: Oh, it’s done. It’s converged. Microsoft’s Enterprise Office 365 has information governance and compliance features alongside the e-discovery tools and I assume that other cloud services are doing it as well, and it just makes sense. There’s a lot of really great things going on in records management and information governance that now help the e-discovery process.
I’d like to see a day in which lawyers start becoming specialists in in situ e-discovery and information governance. I feel that we’re doing that now at Reasonable Discovery®, LLC—not because we intended to but because there is a need. A lot of companies don’t have litigation every day, so they don’t have people on site who are trained in using the features available for in situ compliance and e-discovery. I hope that in the near future, people will be saying at E-Discovery Day: “Yeah, I ought to go get a certification in in situ e-discovery and compliance.” At some point, people will go get these skills, which would be wonderful. It’s good for them, it’s good for our clients, it’s good for the courts, and it’s good for our justice system. We get the e-discovery job done faster, for less money, with fewer disputes and with better results.