Kelly Twigger of ESI Attorneys, eDiscovery Assistant, #CaseOfTheWeek on the ACEDS YouTube Channel, and eDiscovery Bytes Blog (whew I think we can safely safe she is THE quintessential legal eDiscovery entrepreneur) joins us on ESI Survival Guide for a conversation about her professional past, present and future, along with what drives her trailblazing spirit. 

As we cut a path through the electronic wilderness, we stop along the way to discuss technology competence for lawyers in the Digital Age, the biggest issue facing legal practitioners today, the importance of knowing what you don’t know, the entrepreneurial spirit, practical tactics for dealing with the perils of self-collection in the context of FRCP 26(g), the awesomeness of eDiscovery Assistant, how a severed hand can throw unique wrinkles into the Internet of Things, eDiscovery in law schools, career advice for new lawyers, Kentucky vs. UNC basketball and Kelly’s eDiscovery survival kit.   

Below are the highlights of the various topics that we explore, along with some Survival Tips peppered throughout.  And I should note, if you are someone who gets a little flustered by long, awesome video conversations, have no fear, YouTube video timestamps are here.  Check them out on the YouTube Channel – and support us by hitting the Like button or, even better, subscribing!       

Following our lead-in and our disclaimer, I introduce Kelly Twigger – there is no greater trailblazer or standard bearer for the eDiscovery industry than Kelly.  She is a true hybrid of innovative academic and gritty practitioner, and is one of the most active professionals in the space.  She was also awesome enough to sit down with The Guide.

Kelly is an O.G. in the eDiscovery space, and has been cutting a singular trail through the industry that spans over 20 years.  Just a name a few scenic points on her path: 

• – She built the first eDiscovery and Records Retention Practice at Quarles & Brady, while also being a litigation partner.
• – She is a prolific writer on the eDiscovery Bytes blog, which she founded.
• – She co-authored THE BOOK on electronic discovery and records and information management – The Rules, Checklists and Forms Guide. The 2020-2021 edition is now available at the WestLaw Store online.
• – She is the entrepreneurial force behind two of the eDiscovery discipline’s leading resources:
  • 1. ESI Attorneys, and
  • 2. eDiscovery Assistant
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• Kelly also hosts an awesome streaming case law discussion series called #CaseOfTheWeek on the ACEDS YouTube channel, AND she does countless other amazing things in legal academia, the eDiscovery trenches, and more.
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• With that we jumped into our discussion.
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• Competence is the hallmark of the legal profession.  Right now, there are so many challenges that attorneys are facing (e.g., the proliferation of new data types, working remotely, advancements in artificial intelligence, a deluge of new regulations related to data, etc.), so a two-part question:

1. What does competence mean to you in the Digital Age of law?
2. What is the single biggest issue facing attorneys today?

There is no one definition of competence that covers all attorneys.  Your level of competence depends on who you are, your practice area(s), your case load and the types of cases you handle.  With regards to eDiscovery competence, which is a specific subset of competence, this recent Ethics Opinion lays out what eDiscovery competence means and highlights three pathways attorneys can take on this journey:

1. Get competent yourself! Check out this Ethics Opinion for the nine categories of eDiscovery competence.
2. Hire someone to help you! Kelly’s firm ESI Attorneys often gets brought in by other firms to help with all things ESI and eDiscovery.
3. Decline the representation!

When it comes to Electronically Stored Information, it is important to know specific things relevant to your specific practice.  A class action attorney’s level of competence with ESI will need to be different from a family lawyer, a family lawyer’s competence will be different from a criminal prosecutor, a criminal prosecutor’s competence will need to be different from a complex commercial litigator, whose competence will be different from a transactional lawyer, whose competence will be different from a German Rechtsanwalt, and so on and so forth.     

SURVIVAL TIP! Competence is fluid.  Competence is related to your particular practice.  KNOW THE TECH ASPECTS OF YOUR PRACTICE.

[Side Note: Stay tuned for a three-part series on ESI Survival Guide regarding how to gain and maintain competence!]

Consider counsel who fails to take the path of declining the representation.  Is it an ethical issue when a substantively competent counsel begins a matter, may not have the necessary level of technology competence, wades deeper and deeper into eDiscovery before knowing the full scope of the matter, and then fails to decline? 

Yes and no.  An experienced eDiscovery Counsel can quickly define the scope of the eDiscovery issues as they relate to ESI with a few core pieces of information (e.g., the kind of case at issue, the claims, what kind of companies are parties to the matter, the age of the custodians, etc.). 

Survival Tip!  If you are dealing with a lot of third parties in a matter, engage them in the eDiscovery process as early as possible.  The odds are that they are not going to get you the data you need within 30 days, and it could take significant follow-up efforts to get that information.

A lack of specific technology and eDiscovery competence at the outset of a litigation will put you at a disadvantage.  Kelly lays out the approach her firm takes at the start of a new litigation project to understand the initial steps that need to be taken, which includes defining such project parameters as:

• What are the goals of the litigation?
• What are the likely costs related to discovery?
• What kinds of data sources are within scope?

Survival Tip!  While a lack of eDiscovery competence can hurt you from the start of a matter, if you find yourself in over your head, you can always get help.

Survival Tip!  eDiscovery and technology competence are just as much about knowing what you don’t know as they are about knowing what you know.  It is important to know when you need help.

Kelly and I then revisit a question from before: What is the single biggest issue facing attorneys today?

Kelly explains that, from an ESI perspective, rapid changes in technology are the primary challenge facing legal practitioners today.  Such changes are very diverse, whether they be updates to enterprise cloud subscription services like O365, social media applications or some other piece of tech.  Keeping up to speed with developments in technology can be difficult for even a seasoned data lawyer.  Case in point, consider how social media platforms changed their APIs in response to the 2016 election to combat the distribution of misinformation.  These changes impacted lawyers’ abilities to collect information for cases, and the tools used to collect data from social media had to make rapid adjustments.  In some cases, the outputs are still impacted by these post-election updates.  It is important to remember two points when addressing the technological landscape of a matter:

1. What are the core technology elements you need to know for you case?
2. Who do you have available that you can call to get these answers when you need them?

Do you think you would have considered the rapid developments in technology as being the biggest challenge facing legal practitioners when you first began to practice?

No.  The advancements in technology that have occurred over the past decade have been increasing exponentially. 

Kelly and I then reminisce about the days of yore when the height of redaction technology included yellow sticky notes, and email threading was less of a review platform feature than it was a group of lawyers shuffling message print outs by hand.    

You are extremely prolific in the eDiscovery space and play many roles – trailblazing attorney, forward-leaning entrepreneur, industry academic, etc. – (I want to note again that Kelly is the creator of the original eDiscovery Bytes blog, one of the first ever eDiscovery-focused firms ESI Attorneys, and the most comprehensive eDiscovery case law and resource site on the web – eDiscovery Assistant).  Kelly, what is the impetus behind your entrepreneurial path?  What is it that drives you?    

Kelly talks about she has always been a problem solver and loves litigation strategy.  eDiscovery allows her to marry litigation strategy with the technical aspects of law. 

She goes on to talk about how she always envisioned starting a firm.  She was fortunate to have had the experiences that Quarles & Brady offered her, along with being able to work with the professionals that made up her team at the firm.  Kelly mentions some key experiences, all of which are extremely “unicorn-like,” which positioned her to really understand the importance of discovery strategy.  One of these being that she took her first deposition the day after she was sworn into the bar.  Another was facing a non-ESI spoliation issue early in her career.  Her experience evolved over time in conjunction with the emergence of ESI issues, and an event in 2004 served as the impetus behind Kelly starting Quarles & Brady’s eDiscovery practice.  The client work flowed from there.

ESI Attorneys was born from this experience and was built on a business model distinct from that of traditional outside counsel.  Kelly’s firm partners with clients in a way where they are effectively outsourced in-house counsel with the goal of being part of the operations of both the legal department and of the business.  This approach allows ESI Attorneys to better spot data-related issues that impact the enterprise.

eDiscovery Assistant came along because Kelly needed a tool to allow her to know the case law and rules for a particular jurisdiction on demand.  Thankfully for all of us in the legal space, this is a resource that she continues to grow and grow! 

Embracing change is a vital skill that we need to learn to develop in the legal profession.  Also, in this era of great change, due to COVID and various other factors, law students and new lawyers entering the market really need to evaluate the full landscape of available opportunities.  You moved from a coveted partnership to starting an eDiscovery-based firm, and did so in 2009, when eDiscovery was still a very niche practice.  Many would say that this was a very unconventional choice.  Can you talk about the difficulty (or ease) of this choice and the factors that went into your decision? 

Kelly had her crystal ball out in full effect during this time.  She had loads of confidence that competence in the area of eDiscovery was going to be a growing need that had to be filled.  ESI Attorneys’ clients understand the benefit of partnering with the firm on eDiscovery and technology issues so that the trial lawyers can focus on their areas of expertise.  

Many might consider Kelly a risk taker, including even herself in some respects, but when it came to starting her own firm, it was anything but risky (and definitely not comparable to Wile E. Coyote!).  She had a unique skill set, and her expertise filled a growing demand.  She met that demand head on. 

Maybe at some point Kelly will use that same crystal ball to help me pick the winning Powerball numbers!  

Now we pivot to one of the best resources available to legal practitioners and researchers tackling eDiscovery issues: eDiscovery Assistant.  eDiscovery Assistant is something I wish I had access to from the dawn of my career, even when there was only a handful of eDiscovery opinions let alone dozens of new opinions each week.  Can you tell me about eDiscovery Assistant and how users can get the most benefit from this resource?

eDiscovery Assistant is a tool that curates from all of the domestic U.S. decisions, including federal courts, federal district courts and state courts.

There are five core areas of content on eDiscovery Assistant:

1. Case law
2. Discovery rules
3. Checklists
4. Forms
5. A glossary of terms

What really makes this tool unique is that is contains a tagging structure for various issues.  Currently, there are approximately 80 eDiscovery issues within the database.  The eDiscovery Assistant content team reviews all the cases that come through to decide what opinions go into the database.  Following that assessment, those opinions are tagged with the various applicable issues.  This tagging structure, as well as other features, allows users to get to the cases they need in just a few clicks.  eDiscovery Assistant is also developing a learning center that will enhance the user experience with videos aimed at various eDiscovery topics.    

Another cool feature of the platform is the dynamic dashboard.  This dashboard feature presents users with various pieces of information that are constantly updated, including the:

• number of cases added in the past 7 days,
• total number of cases in the database, and
• the top three issues from the past 7 days.

In addition, you can run searches by issue tag across the entire database, search through the recently added opinions, explore the interactive case map that shows federal and state opinions across jurisdictions, and when you do run a search, you can refine your results using numerous filters including issue tags, date filters, keyword searches, district court searches within the circuit courts, and you can even hone in on a specific judge whose opinions you are researching.  

Survival Tip!  Anyone can sign up for a free 30-day trial, and there are free accounts offered to law students.  Approximately 20 – 25 law schools are using eDiscovery Assistant for their eDiscovery/Discovery classes.  Go visit eDiscovery Assistant at www.eDiscoveryAssistant.com to get started.  

You recently launched #CaseOfTheWeek on YouTube – a joint effort between eDiscovery Assistant and ACEDS – offering practical discussions focused on unpacking select opinions for those in the eDiscovery trenches.  In your inaugural video, you mention Magistrate Judge William Matthewman and his EEOC v. M1 5100 Corporation decision regarding the “perils of self-collection.”  In this case, during the meet and confer process, defense counsel stated they didn’t know how their client went about collecting documents.  This is clearly a 26(g) violation, but doesn’t this behavior border on an ethical violation regarding an attorney’s duty of competence as well?

Yes and No.  What Judge Matthewman is saying in this opinion is that you cannot just tell your client to go and collect the data unilaterally.  And this is so for a couple of reasons:

1. Clients do have their own self-interests, and
2. Clients do not necessarily understand the scope of what is relevant in the context of litigation.

It is your job as a lawyer, or the legal professional being supervised by a lawyer, to make sure you’re addressing those points.

That could be a failure of competence, but if the bench looked at every single possible granular competence issue, the process would likely come to a grinding halt!

We need more education in this regard and more professionals dealing with these issues.  There is such a diversity of issues related to eDiscovery that it needs to be recognized as its own substantive area of law.  If our governing organization don’t make this recognition it will be a problem going forward.

You work with a lot of law schools.  Are you seeing that law schools are focusing more on eDiscovery as its own substantive area of law?  With the schools you work with, is eDiscovery a separate area of study as opposed to being bundled in with a civil procedure class?

Yes.  Kelly notes that each one of the schools that leverages eDiscovery Assistant does so as part of a separate eDiscovery or discovery skills class.  It’s all about what makes sense for the syllabus at a particular school, and then the resource is adapted to that program.

Kelly goes on to discuss a few marquee eDiscovery programs at law schools around the country including, Bill Hamilton’s program at the University of Florida Levin College of Law https://www.law.ufl.edu/faculty/william-hamilton and Craig Ball’s program at the University of Texas at Austin – School of Law https://law.utexas.edu/faculty/craig-d-ball/.

However, one of the reasons why there are not more of these types of programs is that to do it effectively, you need to have a teacher that works in these areas day in and day out applying eDiscovery theories and concepts in the real world.  It takes lots of time and energy to put such a class together and teach it properly.  Law schools have full time faculty, and though there are adjunct positions for these types of programs, getting the right people that can dedicate the necessary time can be a challenge.

Survival Tip!  There are so many great resources out there in the eDiscovery realm.  A few fantastic sources of educational content, insight, practical knowhow and industry news that we discussed include the following: 

1. https://craigball.net/ – Craig Ball
2. https://eDiscoverytoday.com – Doug Austin
3. https://www.relativity.com/blog/ – The Relativity Blog
4. https://ediscoveryjournal.com/author/greg-buckles/ – Greg Buckles
5. https://chrisdaleoxford.com/ – Chris Dale

We turn back to the perils of self-collection.  Personally, I recently had two clients, that while they supervised their client’s collection efforts, they were reluctant to challenge their client when they resisted efforts to perform the necessary tasks to ensure a complete and accurate collection.  Do you have any stories about situations where a client has resisted collection efforts and insisted on their own self-identification and self-collection process?  If yes, what did you do to overcome that situation?

Kelly stated how she has not had issues related to client self-collection at ESI Attorneys because of how they partner with their clients.  If a potential client were to be resistant to their efforts, then they would not be afraid to suggest that they may want to work with another team.  One of the reasons why clients come to ESI Attorneys is to specifically receive and follow expert guidance through the process.     

The problem is that in-house counsel often has a legitimate concern regarding balance.  Their concern is when outside counsel wants to come in and broadly over collect.  ESI Attorneys addresses those concerns with clients by showing them why they are doing what they are doing.  For example, if a collection is being run from O365 and they get inconsistent results from their initial searches, they may suggest pulling data from a custodian more broadly using, for example, a particular date range rather than just reply on keywords.  Kelly explains how they need to be able to explain to in-house counsel why they are making particular decisions.  Understanding the technology and being able to take iterative steps on the platforms can help get past collection concerns with a client.       

Clients also must be willing to take on some level of risk during the collection process.  The challenge that you run into as a lawyer is FRCP 26(g), which states that you are certifying that all the documents produced are all the documents that are responsive to particular requests.  If you aren’t certain that the collection you performed includes the required documents, then you really cannot sign of on that production.  This is another point that you need to discuss with your clients.  You cannot put yourself on the line until you know what was done during the identification and collection phases.

There are other options to consider under these circumstances if you think that your client is under collecting.  For example, what kind of searches can you run and/or what kind of sampling can you do from that collection to give you the assurances you need as outside counsel to be able to comply with Rule 26(g).

Survival Tip!  You need to get creative when dealing with a client who might be under collecting, or otherwise putting you in a difficult position to eventually sign off on a production under FRCP 26(g).  Do not be afraid to have the conversation with your client about their collection efforts and position yourself to best support your representation.   

Pivoting to another current trend, but still focused on data collection, and this is something you have commented on extensively – The Internet of Things.  IoT is a topic on which more and more experts in the eDiscovery bubble are focusing.  The Sedona Conference has a brainstorming group addressing the issue and it is constantly discussed in the data law blogosphere.  There are so many nuances to this issue (e.g., possession custody and control, proportionality considerations with regards to the sheer volume of data within scope, advances in technology making acquisitions easier, and more).  What do you see are the current challenges with collecting from IoT sources?  Where do you expect the courts might land on this issue?  Is IoT data really that much more complicated that data sources we’ve had to address in the past?

The courts are going to have to wade into the individual issues that are brought to them.  For example, the was a criminal case years ago that involved a murder charge and data that was potentially contained on Amazon’s Alexa cloud service.  That issue never came to fruition.  Amazon filed a motion to quash that subpoena for the information, but ultimately it was never heard.

Kelly notes that IoT data is problematic, but she states that when we think about it from a source standpoint (i.e., where the information goes to live) it can become a little more familiar.  For example, Kelly uses an Apply Watch, but that data is also on the apps on her smartphone, and may also be contained in the iCloud, or on other Apple devices she has linked together. 

Survival Tip!  When it comes to IoT devices, it’s important to understand each individual device.  Important questions to consider are:

• What data types are available on that device?
• How does that device store data?
• How is data managed on that device?

Kelly then goes into one of the more intense examples I’ve heard related to IoT.  She had a client reach out (no pun intended, and you’ll see why I say that here in a second) about a boating accident where someone’s Apple Watch sunk down to the bottom of a lake.  They were wondering if they could recover data from the sunken Apply Watch.  The catch (again, no pun intended) was that the Apple Watch was possibly still being worn by the victim’s severed hand down on the lakebed.  Unfortunately, this individual’s hand had been tragically cut off in the accident.  Horrific yes; but important IoT questions presented themselves nevertheless.  Did the victim have a cell phone?  Is the cell phone at the bottom of the lake as well?  Did the watch “sink” to the cloud?  Yeah…apologies about that one, I couldn’t help myself.  Depending on how fast the watch was sinking down into the lake, and if the data was synching up to the cloud, the data could still possibly be recovered from the cloud with the username and password for the target account.  The bottom line – there are many considerations when collection from IoT devices.   

[Note that “Severed Hand” is apparently not one of the 80ish issue tags on eDiscovery Assistant.]        

It is important to work with professionals that understand how IoT data is stored on and maintained by various devices, how those services change over time and what new types of data are involved.  Staying on top of these developments is something that ESI Attorneys does for their clients.  For example, Slack is a platform in the news right now.  It just got bought by Salesforce and there are still open issues about how that acquisition, and any related changes, could impact the ability to collect data from the messaging platform. 

There are many developments with regards to how eDiscovery technologies handle new data sources and data types.  But while we focus on the new, we must also remember that there are still struggles with handling even the common data types, like emails and text messages, that we have been dealing with for years, let alone IoT data.

There are countless best practices that relate to reporting on the eDiscovery process.  Surprisingly, I still see a dearth of accurate, comprehensive, detailed reports being kept by parties.  Often times my team and I are called into a matter after it has begun, and we are tasked to right the ship by reverse engineering previous efforts and establishing reporting protocols moving forward.  In a piece that appeared on Above the Law and The Master’s Conference blog in January 2018, you talk about the use of a working discovery report.  Do you still use such reports today?  Has this practice of yours evolved in any way over the years?

Kelly and her team use a working discovery report for every single case.  The article mentioned above lists all the sections in the report, and you can find it by following this link – https://themastersconference.com/news/need-keep-your-ediscovery-team-members-same-page-use-discovery-report.

The report starts with an initial analysis of a particular case and goes all the way through custodian interviews, identification of sources, date ranges and all of the discovery process decisions made, as well as the basis for each of those decisions so that they can be revisited. 

As Kelly states, “Those discovery reports are gold!”

Speaking about where we are today in the legal profession, and the state of legal education, it is such a unique time right now.  You have so much exposure to the legal sector on numerous fronts with your work with your firm, the Master’s Conference, the University of Florida, and more.  Many students graduating from law school and new attorneys entering the job market are concerned with the state of the professional today and the opportunities that are available to them.  What advice do you have for new attorneys entering the legal sector during these challenging times?   

We begin this part of our discussion with some fantastic words of wisdom from Kelly related to what she does when embarking on something new.  She tells us to make a list of exactly what you want and then seek out those opportunities.  It’s difficult to sell yourself into opportunities that you don’t want, and you dimmish your value when you do that. 

Kelly drops one of my favorite quotes of our discussion at this point, “There is a lot of talk about how many lawyers there are in the world, but there are not enough for the people that need them.”

eDiscovery practitioners frequently highlight performing targeted collections as a best practice.  You can use this same best practice when planning your career.  Take a targeted approach to where you want to work and the type(s) of law you want to practice.  Avoid the shotgun method of just blanketing everything without focus and taking whatever you hit.  Historically, if you wanted to practice litigation you were told to be a generalist.  However, in today’s legal market, specialization is very important.  Play around with your law school classes and see what you like.  See what fits best with your overall professional goals.  Despite the current challenges facing the legal job market, now, more than ever, there is a wider breadth of opportunity with regards to what you can do with a law degree beyond the traditional law firm (e.g., consulting companies, service providers, technology developers, ALSPs, and more). 

I wanted to note your love of basketball.  Note that as someone with an undergraduate degree and a JD from UNC Chapel Hill, and a rabid Tarheel, I won’t hold it against you that you are specifically fond of Kentucky, which first, has colors very similar to Duke, and second, beat UNC in the 2011 Elite 8 game in Newark, NJ to head to the Final Four.  I think there are many parallels between athletes and eDiscovery practitioners.  There is actually a blog piece regarding eDiscovery tips from Marathoners on The Guide.  What are the parallels you see between success in the court room and success on the court?

After a bit of a friendly sparring session on UNC basketball vs. Kentucky basketball, my experience with the loss to Nova during the NCAA National Championship in 2016, not wanting to jinx UNC basketball again, and Kelly’s traumatic experience attending the 2017 Final Four in Phoenix, AZ, Kelly discusses her lifelong connection with basketball.  We also jump into the 2021 Kentucky Marathon, and more.

In discussing the relationship between her athletic prowess and success in the legal sector, Kelly gives us another one of my favorite quotes from our talk:

“I can’t imagine a bigger team sport than trying a case.” 

Kelly approaches her professional efforts with ESI Attorneys with a strong team mentality.  She highlights the importance of tackling eDiscovery issues in a collaborative way with both your internal team and outside stakeholders.  When they are serving as discovery counsel for a client, they build cohesion among outside counsel, in-house counsel, third party service providers and technology developers to enhance the overall effort and promote successful outcomes.  Essentially, they act as an extension of the client.  eDiscovery is a team sport!

What are three items in your eDiscovery Survival Kit?

1. The Federal Rules of Civil Procedure and eDiscovery Assistant. You need the case law that goes along with the FRCP.  [We gave a pass on this one and count these two items together as one because together they make an amazing survival tool.]
2. The continued ability to always ask a question when there are unknowns. The only way to continue learning about technology, and to understand how technology works, which then allows you to apply your legal strategy, is to ask the questions that help uncover the unknown answers.  You must be willing to put yourself out there.  
3. The continued desire to learn about new things. Kelly’s job is to address any type of case with her ESI-related expertise.  She notes that you cannot be an expert in all substantive areas of the law and underscores the importance of learning from substantive experts about their disciplines so that her team can then apply their solutions. 

You have created so many unique resources for the legal community to help build competency and move the profession forward.  What’s next? 

Kelly is an idea machine, but she is squarely focused on eDiscovery Assistant and building out the learning center we discussed earlier.  There are some other tricks up her sleeve, but for now she is keeping those under lock and key.

As many of you know, baking has been the secret skill I uncovered during the lockdown.  Kelly is quite the prolific baker herself, and at one time almost started a cookie company.  So maybe if our eDiscovery paths come to a halt, a joint venture, technology-themed bakery might be in our future!  However, I am 100% confident that Kelly’s eDiscovery path will never come to a halt and will continue to grow longer and wider for as long as she wants.  

Thank you Kelly!  There is so much more for us to discuss, and hopefully we will see you back on The Guide soon!

As the sun sets on our conversation (literally, as you can see in the video), Kelly leaves us with some important thoughts.  She tells us all to keep exploring our limits, to keep learning, to keep growing, to find new opportunities if we are pigeonholed, and to stay inquisitive.

Now everyone, go visit ESI Attorneys at www.esiattorneys.com, eDiscovery Assistant at www.eDiscoveryAssistant.com and #CaseOfTheWeek on the ACEDS YouTube Channel here – http://bit.ly/3ciFupy.

Thank you all for tuning in!

This is Matt from ESI Survival Guide telling you to please Stay Safe in the Electronic Wilderness.  See you next time!