Jonathan Wiley, Sr. Solutions Consultant, recently sat down with Brian Clark of Lockridge Grindal Nauen, P.L.L.P. to discuss the challenges and opportunities facing plaintiffs in discovery and the importance of storytelling for trial lawyers.
Brian Clark's practice focuses on plaintiffs'-side antitrust class actions and ediscovery advice for businesses of all sizes. Brian has practiced his entire career at Lockridge Grindal Nauen P.L.L.P., a firm that for nearly 40 years has been at the forefront of class action and complex litigation. Brian frequently presents at CLEs regarding ediscovery, served on the Minnesota State Bar Association Ediscovery Working Group, is a Member of the Sedona Conference Working Group 1, and is a Board Member for the Twin Cities Chapter of the Association of Certified Ediscovery Specialists. Since 2014, Brian has taught an ediscovery seminar at the University of Minnesota Law School. Brian also co-founded and serves on the steering committee for the Complex Litigation Ediscovery Forum, which is an annual gathering for plaintiffs'-side complex litigation attorneys to discuss best practices for ediscovery.
Jonathan: What challenges do you as a plaintiff firm face in discovery that you think may be different from the challenges faced by your Big Law counterparts?
Brian: The biggest challenge we have is taking the large volume of documents we receive and organize them into a coherent story. In complex antitrust class actions in particular, staying abreast of documents as they are discovered by the review team and integrating them into the overall narrative of the case is challenging, especially when there might be a dozen or more relevant defendants and co-conspirators each with a dozen or more relevant employees over a 5 or 10 year period. We are constantly working to find ways to better integrate the document review platform into this narrative-building function.
Jonathan: Are plaintiff firms ahead of or behind their Big Law counterparts regarding aggressive and progressive use of technology in their business strategies and discovery techniques? Why?
Brian: What a Big Law counterpart does behind the scenes to prioritize their review is hard to say. But as to culling of documents, it seems many Big Law firms still favor using search terms to cull documents, which is becoming harder to justify as TAR continues advancing. Client pressure will probably force more Big Law firms to use TAR to cull documents rather than search terms.
Jonathan: What are the top challenges facing your practice and your clients?
Brian: In a contingent practice, cost certainty for ediscovery platforms is critical. Many platforms have hourly tech charges that can spiral out of control. I favor platforms where costs can be easily and accurately predicted. Another challenge is finding ways to get through large data sets quickly and move into depositions quickly.
Jonathan: What technologies are you using to streamline or solve these pain points?
Brian: For cost certainty, I try and obtain all-inclusive rates on a per GB basis. I don’t like to guess at hourly charges that I have little control over. I also keep abreast of each ediscovery platform’s features and upgrades. TAR tools with continuous active learning have become a must-have feature for me, as they allow the review to easily adapt to new data productions and follow the changing priorities of the review as we learn more about the case and the document.
Jonathan: What key indicators were you looking for when selecting a cloud ediscovery tool? What prompted you to choose DISCO?
Brian: I help with RFP processes in many plaintiffs’ contingent and other cases where we need an ediscovery platform vendor to host productions from opposing parties as well as for our own clients' documents. I tend to prefer vendors with predictable costs, easy and quick data ingestion and production tools, intuitive user interfaces so our review teams don’t spend precious time learning the idiosyncrasies of a new tool, and top of the line TAR tools that feature continuous active learning. DISCO does well on all of these parameters.
Jonathan: What has been your experience been using DISCO for ediscovery?
Brian: DISCO is an excellent ediscovery platform – its biggest advantages are its price certainty, an intuitive user interface, and simple integration of predictive coding. I rarely need to have a reviewer do any formal training because it is so simple to use. It also automates many aspects of a platform that are manual with most other products – anything from preparing deposition kits to ingesting documents to self-producing documents with load files. The automation reduces a lot of vendor errors that I’ve encountered with tools that require more manual work by the vendor to ingest or produce data.
Jonathan: What piece of advice would you give to soon-to-be law graduates or new lawyers who are looking for ways to differentiate in an increasingly competitive market?
Brian: I would recommend taking a course on ediscovery in law school, and if your school does not currently offer one, push them to add one. I was surprised to learn back in 2013 that my alma matter, the University of Minnesota Law School did not have an ediscovery course, so I have taught one there each year since 2014. Ediscovery is one of the few areas where a new lawyer in their first 1-5 years of practice can quickly gain responsibility and have a leadership role. It is a great way to distinguish yourself and work more closely with clients early in your career.
Jonathan: Lastly, you know as well as anyone that good stories win cases and improve outcomes. We believe your adversary’s production is a star witness and that gifted trial lawyers using DISCO can truly interrogate that witness to build a more compelling narrative and tell better stories. So, who is your favorite story teller and why?
Brian: My favorite story teller is William Kent Krueger, a Saint Paul author who writes mystery novels set in my favorite place in the world, Northeastern Minnesota. His storytelling brings the reader along as each mystery is solved and it’s hard to put his books down. That kind of storytelling is always the ultimate goal as we build our case during discovery—we want to hold the jury’s interest in the narrative from opening to closing arguments.