eDiscovery Leaders Live: David Yerich of UnitedHealth Group
David and I discussed eDiscovery adoption challenges and opportunities. He talked about the benefits that can accrue from a long tenure in a corporate eDiscovery role, as well as the need to be flexible and the value of caution, and warned that effectively implementing eDiscovery in a company is a process that can take years to accomplish. We were just starting to discuss the pace of change when we lost the connection with David – a first for eDiscovery Leaders Live but, I guess, something that was inevitably going to happen eventually. When David rejoined us, we turned to what corporations want with respect to eDiscovery, in particular partnerships and ecosystems, and David closed with his thoughts on the ideal eDiscovery platform.
Recorded live on March 26, 2021 | Transcription below
Note: This content has been edited and condensed for clarity.
Welcome to eDiscovery Leaders Live, hosted by ACEDS, and sponsored by Reveal. I am George Socha, Senior Vice President of Brand Awareness at Reveal. Each Friday morning at 11 am Eastern, I host an episode of eDiscovery Leaders Live where I get a chance to chat with luminaries in eDiscovery and related areas.
My guest this week is David Yerich. David is Director of eDiscovery at UnitedHealth Group. He has a long tenure in the eDiscovery field. David was a Senior IT Analyst at Cargill, got his JD at Mitchell Hamline School of Law, was an eDiscovery consultant at what then was called Faegre & Benson, now Faegre Drinker Biddle, for a number of years, and for some time now has been the Director of eDiscovery at UnitedHealth. David, welcome.
Hi George, it’s great to be here. Good to see again, as always.
Yeah, one day we’ll get together in person again.
That will be soon, hopefully.
eDiscovery Adoption Challenges and Opportunities
The Benefits of a Long Tenure
Hopefully soon. I’d like to, for this week's discussion, talk with you initially about adoption challenges and opportunities. You sit in the corporation of a corporate legal department. You've got a very different vantage point from a number of the guests we've had here. You've had enough time at UnitedHealth to see the upside, the downside, the difficulties and some ways of dealing with the difficulties when it comes to implementing technology, in particular eDiscovery technology. in an organization. What can you tell us?
I think back to my interview. Now, I've been at United Health Group for just over 11 years and very fortunate I happened to join a company that is growing, continues to grow, is very dynamic. It never gets old or boring because there's always something new, but I go back to that first interview in my mind and they asked me, the woman that was interviewing, asked me what I thought I would be doing in five years on the job. Without sarcasm or whatever, I was like, “Well, I'm pretty sure that the eDiscovery part will be done so I'll probably be looking to move into a different role or work on different things”. Because in my mind, I could not imagine that it would take more than five years to set up the eDiscovery program and have it running. And I wasn't much of a caretaker of things, I like to be involved in new things and not one who wanted to tend to the existing things overall, but I was so wrong on that.
I think the company's growth pattern has been hugely impactful in that, as well as all that technology that is forever changing. It isn't something that you can set it and forget it in eDiscovery, as we all know. After a decade, I'm very proud of what we've accomplished but as always it's work in progress and there's always room for improvement.
Do you think your experience is unusual in that you thought you'd be begun and done in five years, and you find that 11 years in you're still not in that caretaker role? Is that unusual or is that common?
Unless you’re an eDiscovery company, then obviously there's a built in desire to do eDiscovery, but for a corporation we push it to make it happen, it's not going to happen on its own without that effort.
What I can now say, is it's unusual. It's not like we have a class of eDiscovery people who started at corporations. But over the years of going to conferences you meet people, and many of my peers have moved on to different roles completely now out of eDiscovery in the last two or three years. Many others have switched corporations completely or even gone from corporations to service providers, some even back to law firms.
It is unusual to be in the same exact role, title, doing essentially the same work for over a decade at a company; that is somewhat unusual. I have found however, that it's been, at least in my opinion, it's been hugely beneficial because corporations, it takes a while. You have to get your budget. You have to get that approved. Then you have to go through a procurement process to select the technology or get the technology that's equivalent to what you had set out to do. Then you have to implement that technology. Next thing you know, you've used up three years on an idea to move forward. If you have significant change over during any part of those processes of implementing, if somebody's not pushing the ball forward, the inertia will stop the ball from moving, actually. It's almost always pushing it uphill.
Unless you’re an eDiscovery company, then obviously there's a built in desire to do eDiscovery, but for a corporation we push it to make it happen, it's not going to happen on its own without that effort. I do think it's been beneficial to have a longer tenure because it's allowed us to go through a couple cycles of tools now and improve upon the previous generation.
What lessons have you learned going through those cycles?
Be flexible. Be really, really flexible. The tools, no matter how much I have thought I understood how they would work, in practice they don't necessarily work as I envisioned them and there's no amount of explanation and I try to over-explain, I'm very giving of information. Even with all of that, there's just a lot of surprises. You may have thought you were going to use a tool in a certain way or your team should be structured in order to do something, and you find out that it's been three years, you're gone live, and it's not working. You can't just stop, you've got to figure out why it's not working and then do whatever is required to make it work. That ultimately is successful; it's just the planning now for me has a big area that's TBD on things. It's not that we didn't get to it, it's simply that we can't with certainty say how it should fill in.
Always Be Curious - And Learn the Culture
For that person who today is sitting in that interview chair you were sitting in 11 years ago, what words of advice do you have and what words of caution do you have?
As far as advice, for me it's always be curious, always want to know more. As long as you're curious there's a world of wonder out there, especially in eDiscovery and the tools.
Caution is, don't over-listen to people who are so certain that things need to be one way. There's a lot of folks in eDiscovery who are very passionate, myself included. What works for one organization can be a total disaster at another organization. It's because the technology, the process, the people all have to fit the culture. You really need to understand that culture to be successful. While you have a mission, you have a goal, you have your ideas, you really want to learn about that organization you entered, in order to be successful because otherwise there's that old saying that, what is it, “Culture eats breakfast for lunch…?”, I can't remember, I just had a senior gaffe there, but point being if you don't take in the culture of the organization you’re in, it's not going to work.
I've seen wonderful things that I've been very enamored with like, “How does that organization do that? I would like to do that”. But I have to realistically say, “Well, that's not going to fit within our structure, that's not how we as a company do things. So, yeah it might be a great idea, but it's not going to be a great idea for us”.
A Process That Can Take Years
I get the impression, listening to what you say, that two years at a corporation with a role like yours, three years, that's not really enough. That's just enough to start to get to know the lay of the land and figure things out but not enough to make meaningful positive change. Is that a valid impression?
For me that's been my experience and that's what I've seen again with peers who have been in roles that are similar. A lot of times corporations are changing themselves, so you get new leadership, they get acquired, lots of different things happen in this world that are very dynamic. It's a very slow process to take eDiscovery technology or especially if you’re going to build it in-house. I guess if you're looking for an outsourced model, I think you could do that in two to three years, if you're looking for an outsourced model. But if you need to bring things in, I think it's going to take a bit longer than three years in general to get it to where you want it.
The Pace of Change
There’s a dynamic I'd like to turn to. You've mentioned a couple of things here. One is the rapid pace of change when it comes to the technology available to use for eDiscovery. And two is the sometimes slow pace of change within a corporation because of culture or for any of a number of other reasons. How do those mesh, the rapid change in technology and perhaps a slower moving rate of change within a corporation?
Interrupted Internet Access Forces a Break on Us
[David lost Internet access temporarily; I ad-libbed until David was able to re-join us.]
Hopefully David will join us back in a moment.
More on David’s Background
While we are waiting to see if he returns, a little bit more about David. I've known him since before he joined UnitedHealth, back in his Faegre days. One of the things he has done is helped work with organizations such as Hamline, whose law school is now part of Hemline Mitchell, to develop eDiscovery training capabilities so that others can benefit from his experience and expertise. I know he's a regular speaker at conferences, a regular attendee there.
We have been running this program for some time now. We've got maybe 20, 30 episodes. You can go to back episodes several different ways. You can follow whatever path it is you took to get to this particular interview. Or you can go to the Reveal website, where we've got both the recordings of all of the interviews, plus transcripts where we let people know what's going on.
What’s Going on at Reveal
From the comments, “Tell us what's going on at Reveal.” A lot is happening. For anybody who doesn't know, just before I joined Reveal in September, Reveal acquired NexLP, and then just a few months ago, Reveal and Brainspace merged, bringing together two powerful sets of AI capabilities. One part of my job is doing this type of thing, the public facing side. Another part of my job is working with the product planning team to figure out where next. And of course, I can’t talk about any of the details of anything that's happening. All I can do is give you some teasers to hopefully whet your appetite and have you wait to see what's coming next.
We continue to maintain Branispace as a standalone option. Of course, we have to do that, we've committed to do that, and we will do that. We also, though, are working on bringing together the best of what was NexLP, the best of Brainspace in one unified platform so that those different capabilities can be pulled together, those technologies can play off each other and give users a much more powerful and much richer experience. So stay tuned for that.
If you want to see some of the things that can be done, go to last week's discussion with Ilan Sherr from DLA Piper, where he talked about Aiscension. They are making very innovative and creative use of reusable AI models to allow for the rapid detection of cartel behavior - price fixing or competition, however you look at it, whatever your legal system. Behavior the corporations want to try to capture early on so that they don't get into trouble.
More About David
A little bit more about David's background and how he got into eDiscovery. I think David got interested in eDiscovery probably while he was in law school, I'm not sure, I don't remember. The job he took to with Faegre I think was an eDiscovery position from the get-go, so he worked in the trenches in eDiscovery at Faegre, getting to know the nitty gritty details of it quite well. Then after a number of years, I forget the exact path of it all, he ended up with UnitedHealth where he was able to take the things that he had learned at Faegre as well as what he learned at conferences and other programs and put them in action in the legal in-house position. I certainly wouldn't have guessed just as David didn’t guess that he would still be there 11 years later. I certainly wouldn't have guessed as well that it would have been 11 years of almost eDiscovery start up for him every step of the way so that it's always got new and interesting challenges to deal with.
My Ideal eDiscovery Platform
Switching direction a little more while we wait for David to come back, if he's able to come back. One of the questions up here for me to do is answer the question I ask other people what would my ideal eDiscovery platform look like?
For me, it would be something that would transcend just eDiscovery. I spent 16 years as a practicing lawyer, a litigator. I did not try enough cases - the longest trial I worked on was four months, but I didn’t try that many cases or work on that many trials - to feel like I could call myself a trial lawyer. But I did work the full life cycle of many matters from complaint up through resolution, trial, appeal, whatever it might be.
I would like technology that would help and guide me through that whole process, incorporating in all that needs to be done with respect to eDiscovery but incorporating all that needs to be done with respect to the entire matter, to help me figure out how to prepare a complaint, how to answer a complaint, what to do with respect to requests, responses, who should I be looking at in terms of potential witnesses? What should my theory of the case look like, what sort of data is there that will support or refute that theory of the case? I'd like it to guide me, give me suggestions, warn me when that looks like I'm getting off track, let me go off in a different direction if I think it's better because in the end I might have some ideas that are worth pursuing that the platform wouldn’t come up with. But be there as a resource and a tool to guide me.
I’d like to pull case law right into that. I'm not a big fan of talking a lot about eDiscovery case law because I think for the most part it just tells us what one person may or may not have done right, but doesn't tell us where to go. It is however a useful and important piece of what's going on with all of this.
Back to David
[His internet connection back, David re-joined us.]
What Corporations Want: Partnerships and Ecosystems
David is back, I don’t have to fill air time anymore waiting for David to return. I would say we would pick up where we left off but I've been blathering on long enough that I don't remember where we were when we left off.
We only have a few minutes left, so I think what I'd like to do is two things if we have time. First ask you, what do corporations want out of eDiscovery, out of the law firms, the service providers, the software providers. What do you want as opposed to what you're getting?
We want to get those documents produced in the most effective way we can. What we want is an ecosystem that helps us do that and understands what our needs are, and brings to us solutions that we can then utilize to make us make that task easier.
At a fundamental level, a partnership to get the product done. A corporation, unless your job is in eDiscovery, and ours is not, in my case, we have a responsibility to the legal system to produce the documents that are potentially relevant for litigation, civil matters, regulatory filings, and those kinds of things. We want to get those documents produced in the most effective way we can. What we want is an ecosystem that helps us do that and understands what our needs are, and brings to us solutions that we can then utilize to make us make that task easier.
I don't think most corporations want to become - although they necessarily have to become but I don't know that they want to become - experts in the area of discovery and have to maintain that much knowledge, tool sets, expertise.
I would like to see an ecosystem that is about how the law firms and the service providers in the corporations could all work more seamlessly together to accomplish those tasks, along with the vendors and the software that's utilized by the companies that is part of creating all of the data that ultimately gets collected.
Your Ideal eDiscovery Platform
My final question for you and the one I was just trying to answer myself about me: What would your ideal eDiscovery platform look like? Assume zero limitations - financial, technical, or of any other type. You can do anything. What would it look like?
I can imagine a world that's completely integrated. One where when you create your data, the governance around it is automatically understood, the record retention schedules are applied, if there's PHI, PII, confidential information, it's automatically noted, marked and secured as such.
Then that information remains fully available. If it needs to be litigated and if litigation of that happens, it would be very easy to identify that information and secure it in place.
Then the software that would sit on top of that would allow you to analyze the information that you need, but it would go even beyond that. It could look at case law and it could look at what's going on with regulations and statutes. It would actually be able to identify the information that would be pertinent to the matter, identify not just at a custodian basis but at a subject matter basis, and then from that extrapolate to the custodians, the type of information that should be looked at. And then even go so far as to assess whether or not based on the information it's discovered, based on the knowledge that it's pulled from that, the case law at the time, the regulations, “Are you are good?”, ”Do you have an issue that you need to look at?” And make that more readily available. Now, that's fanciful thinking, definitely.
A Security Standard
Let's just drop it back a little bit of a percentage. I think it would be really excellent if we had a security standard that as long as everybody met this security standard, we didn't have to have concerns and do separate vending on every company in every area. So that’s some type of - and I don't know that it would blockchain - but some type of certainty with how data flows and that data is secure and that if you didn't have the right access you couldn’t get to it, but that we could take all that friction that exists today and just on-boarding a new service provider, making sure that they meet your standards and getting to that point of understanding and then the constant follow up.
You asked kind of an open-ended question, so there's a very open-ended answer: a utopian world where the data pretty much takes care of itself and the legal matters are understood before they are almost are at issue.
I’m curious about that last point. Would that standard be something that would be implemented more like a certificate, so that you would go to an organization and say, “We've passed this testing and evaluation and we're good”? Or would it be something more integrated, à la some sort of enterprise-wide, from their perspective, implementation of something like blockchain, just as an example?
I don't think it's a certificate. I hearken back to something more like the original telephones. Now for a while you couldn’t connect a device to the network that wasn't from one of the Bells, it was illegal to do that. So, we had these modem couplers and crazy things and eventually they have a standard set up. But when you dialed somebody, you didn't have to worry about their phone being able to answer. It worked.
I would just imagine some type of infrastructure level where it would be impossible to not have security. Not a certificate that says you're secure because we've taken these steps, but a basic infrastructure that would make it impossible for the information to not be secure. Again, I come back to like a blockchain device or some type of immutable ledger and I don't think it has to be a widespread consensus ledger with thousands of copies across the world, but something that you can simply rely on because there's no question. So when you picked up that phone and made that phone call back in the day, it worked. And because the other technology was capable of answering, I would just like something as simple in thought, not obviously the same technology, for having security. It's not a certificate that's going to work, it works because it has to work or it won’t function.
Okay. Thank you. Well, thank you for joining us this week David. David Yerich is Director of eDiscovery UnitedHealth Group. I’m glad to have had you here today. Sorry about the technical challenges, those things happen. Please join us all next Friday, April 2nd when we return with another episode of eDiscovery Leaders Live. Thanks David.
Thank you George.