Energy corporation The Williams Companies, its outside counsel Crowe & Dunlevy and discovery management firm Inventus form a productive trio in meeting the company’s e-discovery needs. Representatives from each arm of the partnership – Amy Sellars of The Williams Companies, Christopher B. Woods of Crowe & Dunlevy, and Clint Williams and Stephen Kennedy of Inventus – share their successful tactics. Their remarks have been edited for length and style.
MCC: How long have your firms been working together and what are some of the key elements of your collaboration? Chris, do you want to start us off?
Woods: Crowe & Dunlevy and The Williams Companies have enjoyed a long relationship – as long as I have been at the firm, and that’s more than 15 years. That type of a relationship benefits us as outside counsel in being able to learn a lot about the client – not only various aspects of their business, but also understanding how they approach matters. In the e-discovery context, it provides us an understanding of their systems and processes – not to the degree that Amy has, by any means, but a familiarity that is very useful. Our relationship with Inventus is a newer relationship. This is the first case on which I have worked with them.
Sellars: This is also the first time that The Williams Companies has worked with Inventus. The Crowe-Williams association does go back. In fact, I think that Crowe has been our e-discovery counsel on every major complex litigation involving large volumes of ESI. It’s a pretty big history.
MCC: How do you manage one of these highly complex matters?
Woods: There are similarities that cut across all these matters, but each matter also stands on its own. When we receive a new case, we evaluate not only the substantive issues, but also the data that will be implicated, the number of custodians implicated, what types of systems and databases might be involved, and things of that nature. Each case is handled a little bit differently depending on those aspects and other factors, including the size of the matter and the anticipated schedule.
As Amy mentioned, Crowe has worked with Williams on quite a few cases with large volumes of ESI. But a “substantial amount of data” itself is variable and often requires different approaches. What we do from the beginning is take a look at those issues. We take a look at the key people involved, including their roles, duration of involvement and whether they are current or former employees. We look at what databases might be implicated. Williams has many different systems for different areas of its business. But one of the great things about our relationship with Williams, and having someone with Amy’s expertise as a client, is that they’ve done a lot of work before they ever call us. They have a good handle on things.
Sellars: That’s true, but I think Crowe really helps us refine the scope. One thing that I’ve loved about working with Crowe is that scope is a continual issue. It’s not that we define the scope of the case based on the face of the complaint knowing we will never revisit it.
As with most companies, our goal is to retain as little as we are obligated to retain but still meet our obligations. Crowe has been very thoughtful in working with us on figuring out: Who are truly the key custodians? Who do we really need to collect from early? What are the date ranges? Are we pushing some things to the side for the moment with the idea that there is no real danger of spoliation, and if we have to get to it, we will? They are very helpful in helping us be as targeted as possible so that the ultimate cost of review is as low as possible. Sometimes you work with outside counsel who feel like you will start with the entire world and narrow down from there, rather than thinking about the case as it progresses and modifying your scope as you move through it.
MCC: Given all of that, how can a company go about developing a data retention strategy that makes sense?
Woods: What Amy said is the key. As with other aspects of any case, as you review documents and talk to witnesses, you learn more about the case. Some of that information bears on the e-discovery process and retention/preservation issues. Certainly, Williams does a wonderful job at the outset of talking to individuals, finding out who was involved, where the data is, and making sure it’s preserved. But as you get deeper into the matter, you might find, for instance, that a certain person didn’t really have a significant role in the case. After you’ve collected the data, you also are able to run analytics and conduct searches to evaluate custodians’ involvement, date ranges and the like. You can talk to the witnesses to assess whether certain custodians can be released.
Likewise, as the case progresses, you may learn about people that you didn’t anticipate. It’s an evolving process, but always with the objective of making sure that we’re not collecting and reviewing any more data than is necessary, because it is so costly and such a burden on the trial team to get through this additional material to prepare the case. Focusing on the key custodians and date ranges – making sure you have the right data – is the foundation for making sure that you’re complying with your obligations and have what you need. You don’t want more data than you need, as that bogs you down.
MCC: Talk about how you collaborate to develop strategies going into the e-discovery process and how your teams design your approach to project management. It sounds like, in this situation, we have three groups that work well together.
Sellars: It’s a hard question to answer. It’s like asking us to do improv comedy.
If the team understands what you’re trying to achieve, they can help you know what you missed and what you have that you don’t need and why, so you have a defensible trail of how you came to decisions in terms of scope.
Chris and I have had experiences where we look at each other with blank faces and then turn to the vendor and say, “If you have suggestions, can you help us?” We get equally blank faces, and that’s part of the reason we’re on the phone with Inventus. Having somebody who can offer you suggestions, things you could try, things they’ve done before in other cases where they had a similar problem, is great.
I always joke with Chris about how we hate to say, “I don’t know.” But when you find someone who will, that’s great because rather than making up an answer or letting something go completely wrong, they’ll go find the person who does know the answer, or they’ll find what you need to do by relying on folks with more knowledge about that area. This is such a vast area. It goes far beyond law. You could get into project management, technology, linguistics, data intelligence. No one person can be all that. That’s why you have to have a team, and that’s why you have to collaborate. It’s just that in each case, the facts and circumstances are different, and your process has to be flexible.
Woods: I suspect of those of us on the call, I’m the one who knows the least about the technical aspects of the tools. That’s OK, because we all bring different experiences and different expertise, and we have different roles. The key is to put together the right team. As Amy said, we feel that the greatest value we can get from our e-discovery firms is that they share their experience and make suggestions. They see this every day. They see counsel who try different approaches, and through their experience, they know some things that maybe we haven’t thought of. They also have seen things that didn’t go so well. They know some functionality that exists within their tools that I might not have used.
While I think it’s important for outside counsel to be educated enough that they can understand the issues, talk intelligently with their team, and make informed decisions and recommendations to their client, I don’t need to be the expert. What I really look for are project managers who understand my objective and give me options, and tell me the pros and cons of things that I might suggest. We have had a number of vendors in the past who do what you ask of them, but they don’t suggest alternatives.
The wonderful thing about working with Steve is not only is he incredibly responsive, he understands our objective. He shares that objective. So, if we present him with a problem, he’ll tell us the advantages and disadvantages of certain approaches and let us make that decision. Also, if we ask him to do something, he has the knowledge and experience to do it consistent with our objectives. It’s been really refreshing, and it makes my life a lot easier as outside counsel, to have a partner like Inventus and a project manager like Steve who I can rely on to do those things.
Kennedy: A lot of times in these relationships, there can be kind of an “us and them” dynamic. It’s almost combative. “What’s our vendor doing to us? What are they going to do to us today?” Where you get the most traction is when, as Chris said, you’re a team. We don’t know all the legal strategies, but our job is to support those strategies. Our job is to understand what you want to do. There may be two or three different ways to do it, and we may think one is the best, but it’s always important to remain open to other ideas, as there may be things that we aren’t privy to. You have to keep an open mind and be as flexible as possible, but always with the understanding that our goal, like Chris said, is to make our clients’ lives easier – to kind of take away the headache of e-discovery so that they trust us and trust that things are going to get done properly and in a timely fashion. We want them to think, “They are there for us. They are listening.” That’s what we can do to build the relationship so we are a team and not sinking, but hopefully, mostly swimming, together.
Woods: It’s also nice that they are patient when I ask stupid questions.
Kennedy: There are no stupid questions.
Sellars: What I really like about Chris is that Chris will ask a lot of questions. He’s like a five-year-old. He asks until he understands it. Again, I urge people who are reading this and thinking about getting into large-scale e-discovery projects, you have to be willing to learn a whole lot as you go. I learn a whole lot more in every project, and continue to learn, and the technology continues to change and the rules are changing. It’s a great comfort to be a part of a group of people sharing ideas and strategies. I’m relying on Chris to ask questions until he is satisfied that we’re doing this in the most efficient way and with the best results.
Kennedy: Some vendors would maybe get frustrated, but frankly, I think it’s always great when clients want to educate themselves about the process. It really helps if you’re all speaking the same language. Large-scale e-discovery is not going away, so the more you know, the more it can help you moving forward.
MCC: Energy infrastructure is kind of a niche area. What, if anything, is
different about data and e-discovery in your cases?
Woods: I don’t view it as being substantially different. If I have a case that involves a substantial amount of data, it doesn’t really matter if it’s an energy company or a financial company. There will still be a whole lot of email with attachments, and there will be noncustodial sources that we need to identify, collect and review. When it comes to large amounts of data, it’s the same questions regardless of the industry. For instance, what data needs to be collected? How am I going to go about reviewing it in the most cost-effective manner? What does the schedule look like? I find that volume, your opposing counsel and your schedule are much more important factors in the e-discovery process than the industry from which the documents came.
Sellars: The only thing I would say about a regulated industry is that people get accustomed to the idea that things have to be saved for what are sometimes inordinate periods of time. They get used to that as a practice and don’t differentiate between data subject to regulation and all data. I think, however, that this is probably a universal problem with people overpreserving stuff regardless of industry, because storage is cheap and the time to go back and clean up is hard to find.
The other thing is that in our industry, we have sensors on everything. We are collecting data at a ridiculous rate all day long at every site, every fractionation plant, every processing plant. There are sensors everywhere sending data constantly. Some of that data is immediately overwritten, and some of it is captured and stored in other databases. If you had an incident at a plant, for instance, there is the potential to have literally hundreds of thousands of lines of sensor information coming in, which is something we are struggling to understand how to deal with. Most people are struggling to understand how to deal with mass volumes of data. A lot of it’s raw, but it’s there. You have to figure out what it is and deal with it even if it should have been disposed of long, long ago.
Kennedy: I wouldn’t say there is anything different. Like you said, it’s primarily email and attachments. I know that we have other oil and gas projects that, depending on the size and the scope, can involve a lot of scans – nonelectronic data that’s scanned in – which can be a challenge to work with. Just as you might be working with a lease from the 1980s that was almost handwritten. There can be challenges getting searchable text and things like that. Otherwise, the data is pretty similar to any other large-scale litigation – primarily email and attachment data with some loose files.
MCC: What are some of the essential tools that your teams are using to collect and analyze data?
Kennedy: The primary tool we use is Relativity as a review tool. Within Relativity, I think the most useful tools that we have are analytics. Whether that’s email threading, deduping technologies, assisted review, all of those work together to streamline the review process. One of the most expensive aspects of large-scale litigation is review time – having contract attorneys go in to look at individual documents. Using technology, whether it’s de-duping in your processing environment, email threading to sort threads so that you don’t have people looking at different parts of an email thread at different times, works to cut down that review bill, which I think is of great benefit to clients.
Williams: Like Stephen said, we primarily utilize Relativity for review.
However, we have many proprietary custom developments within the tool which were all built based on client feedback. Our focus has always revolved around delivering exceptional value to our clients by reducing cost and risk. We achieve this goal by leveraging our unique combination of best-in-breed technology, customized workflows, and most importantly, people. Those
are the necessary ingredients for success, but the secret sauce is all about
MCC: Do you anticipate any changes to your strategy or approach to project management given the recent changes to the Federal Rules of Civil Procedure?
Woods: I am cautiously optimistic, but in terms of preservation, I would take a wait-and-see approach. Until we see how the courts apply the rules, there is potential to get yourself in trouble if you get too aggressive when it comes to preservation obligations.
I do think, however, there will be some immediate changes in how lawyers approach and conduct a Rule 26(f) conference and try to limit the scope of discovery. I think we will have stronger grounds to seek, and likely be able to obtain agreement regarding, reasonable limits on the scope of discovery. In my experience, there has been a trend toward that anyway. E-discovery has become so overwhelming that opposing counsel doesn’t want to receive more documents than they can handle. If you have another large company on the other side of the case, they are feeling the same burdens that you are. Counsel has been increasingly willing to agree to some scope limits, and I think that the recent changes to the rules will continue that trend.
Sellars: I completely agree with that. I’m hopeful this will substantially lessen the review burden. At a recent EDI conference, I asked a panel of judges whether proportionality would apply to preservation. The answer was, essentially, “no” and/or “you won’t know what proportional preservation is because the judge gets to tell you.” Chris is right that while we may have to save email and documents for 100 custodians, in a 26(f) we might get down to an essential 10 and focus efforts in a more proportional way, but I don’t think the preservation burden will change. The rules are only codifying developments in the case law over the past few years. Our strategy won’t change substantially, but I think other people may begin to understand better how to appropriately scope discovery in large cases.
Kennedy: If this helps clients reduce the scope of what has to go into a database or get reviewed, then this will help us help them by reducing discovery costs.
MCC: What’s your advice to other in-house lawyers looking to collaborate with data management experts such as Inventus?
Woods: As we discussed, the key is putting together a good team and finding project managers who understand your objectives and concerns, and are proactive in offering their advice and expertise. As lawyers, we need to be educated enough to make sure we can meaningfully contribute to the discussion and evaluate strategies that comply with our obligations and develop our case, but also which manage costs based on what’s appropriate for this litigation. Lawyers don’t have to be IT experts. If you put together a good team, the better that they’ll make you look in the end.
Sellars: Amen to all of that. Chris and I have said many times that there are lots of vendors out there and lots of products. The most important part is the project manager. Tools are tools. People think and are smart and are invested, and when you’ve got a project manager from a vendor who works with you and is invested in the outcome, it’s a very different experience from some of the other experiences we’ve had.
Woods: Amy and I have worked together for a long time on a lot of large cases. This is our first case in which we’ve worked with Inventus. That tells you that clients will continue to look for a vendor that helps them until they find it. We’re on the phone with you today because we’ve had a very good experience with Inventus, and we feel that Steve has really set the bar in terms of what we’re looking for from a project manager.
Williams: Being open to the vendor’s suggestions and the expertise that they bring to the equation is extremely important. One of the things that stuck with me when this engagement began was Amy’s statement that the project managers make or break the value of any engagement. That’s 100 percent true. You can have the technology and the workflows, you can even have all of the “tools” necessary for success, but if you don’t have the right people asking the right questions, the value that you can bring to the engagement will be negated. The vast majority of our project managers are lawyers who have substantial experience managing complex litigation and document reviews in various aspects of law. There is a tremendous amount of value to be had by our clients in leveraging that experience. One of the things that I ask of all my project managers is to really challenge our client’s way of thinking. If we see a better way we will “challenge” our clients to take a different approach. It is great when we get to work with clients like Chris and Amy who allow us the freedom to bring different thoughts and creative ideas to the discussion. It is through those consultative conversations that I feel we are able to deliver significant value to our clients.