The Kelly Twigger Interview Part I: Combating the Document Dump
POSTED ON October 17

We recently had the great privilege of interviewing Minnesota chapter of Women in eDiscovery speaker and noted legal technology pundit Kelly Twigger of ESI Attorneys. Our conversation touched on a variety of topics, which we’ll be sharing in the coming weeks here at Germane Shepherd. Our first conversation rotates around a crucial strategic question. How can a computer forensics firm assist a law firm battling an attempt to force a result through the sheer volume of document review? We asked Twigger about her current experiences, as well as, those during her commercial litigator stint with Quarles & Brady, and we shared some of our experiences as well. Chris Chalstrom: Kelly, can you tell us about your experience in working on cases where a party tries to out-resource the other? Kelly Twigger: Sure. I see it a lot and cost is the elephant in the room in those situations. Not all firms can afford eDiscovery costs, which gives opposing counsel an advantage. The technology is there for both sides of a dispute to reduce their expenses, but both need to be willing to make the investment. I see out-resourcing attempts more against the plaintiff’s side – large firms trying to take advantage of plaintiff’ counsel. To compound the problem they face, there’s a real lack of education in the plaintiffs’ bar about the tools that are available and how they can use them. The majority of plaintiff work is done on a contingency-fee basis so up-front expenses are a problem. Attorneys need to think strategically from the get-go about what it is they’re requesting and what they really need to prove their case, instead of asking for a huge volume of information, getting it, and then not having any idea what to do with it. Because frankly, that’s the way lawyering has always been done. It’s been “ask for the moon” and then filter it down. If willing to pay for it, attorneys can still do it that way. But most people aren’t willing to pay for it—even large corporations that have a lot of money aren’t willing to pay for it. We’re caught in what I call the eDiscovery Knowledge Gap. We’re missing the lawyering being applied to the early stages of the discovery process in order to make what Shepherd can do with data much more possible for every single case. Chris Chalstrom: The cost for eDiscovery is all front-loaded, whereas traditional case management has the costs for discovery amortized through the life of a case. Now to be really efficient, it is best to invest in case management up-front, because then you save attorney review time. You reduce the pool of data down to just a small set, and you’re not constantly reproducing or readjusting the data over and over again. Asking for the universe costs the attorney and client. Kelly Twigger: Up-front planning controls a lot of the expenses downstream. And, if we continue to apply legal strategy throughout the eDiscovery process, we can save even more. But if attorneys bring eDiscovery counsel like me on six months into the case, and they’ve already sent out incredibly voluminous requests, it’s much harder to control effort and cost. I read these requests and tell my clients, “you’re going to get two terabytes of data here and it’s going to cost you at least a couple hundred thousand dollars, just to get started. Not even to look at anything. Just to figure out what you have, and how you want to organize it, and pick a tool, and for me to negotiate the cost of the tool, you will tack on more costs.” And, their response is usually one of complete shock. Or, before I’m involved, they go to providers who give them a list of here’s what we’re going to charge you, and the attorneys don’t understand what the providers are telling them. The attorneys don’t know how to compare the pricing they are given to the volumes of data that they are going to get, and that’s another problem. There is no one size fits all approach, no Staples easy button. Chris Chalstrom: It’s true. I hear all the time, “Can’t you just push a button?” Kelly Twigger: Here’s an example. I was brought into a case on Thursday and told “We’re deposing the IT guy on Tuesday.” I said, “OK, what are you deposing him about?” They said, “Can you take that deposition?” And I said, “I absolutely can take that deposition but you’re going to have to get me admitted for the case. You can do that if you can get the judge to do that before Tuesday– that’s no problem. But I need to understand what it is we’re trying to learn from the IT guy because you just sent me the complaint and I read it and I don’t know why you want to talk to the IT guy. I know what I need and I don’t think it’s going to come from the IT guy, I gotta tell you.” [laughs] This is the area where Chris and I live, and we live on a little bit different side of it. Chris is on the technical side and I marry the litigation strategy to what the data is that attorneys want, how they’re going to get it admitted into evidence, and how to take it from where it currently stands all the way to admission in trial. I would go to Chris and say, “I need you to be my right hand so I can get this data from where it lives all the way through trial in an appropriate chain of custody.” I deal with all the legal issues along the way. So we are a partnership. When I work with providers I sit down with them, meet them, know who they are, know what their project management philosophy is, how their team works, everything, because my client’s everything is in their hands. If it’s a plaintiff’s case, the everything eDiscovery stakes are high. A lot of times crippling injuries are involved. If you mess up the evidence, the case is finished.

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.