eDiscovery Leaders Live: Carolyn Southerland of Construction Discovery Experts
With over 25 years of electronic discovery experience, Carolyn is a leader in developing processes and strategies for electronically stored information. She has extensive experience in the law and process regarding eDiscovery in litigation, arbitration, and governmental investigations. Carolyn arrived at CDE following her time as a managing director at Huron Consulting Group and Morae Global. Before that, she expertly guided major construction and pharmaceutical companies, as well as large municipal entities, through eDiscovery challenges for 20 years at the Baker Botts LLP. Today, Carolyn is a senior eDiscovery consultant with CDE, working with ENR-100 construction companies in gathering, filtering, and producing data required in litigation and arbitration.
Carolyn started the session discussing what motivated her to move from business litigator to eDiscovery consultant. She then talked about where eDiscovery fits in the bigger picture, which took us to how ESI could be used for depositions – and how it usually is used. Next, Carolyn focused on the particulars of eDiscovery in construction litigation: the different data sources, the different ways in which those involved in construction use and share data, and different approaches required once we get to discovery, and ultimately what can be done with construction data at hearings and trials. We turned to ChatGPT, examining Carolyn’s ChatGPT : eDiscovery AI :: Terminator : Ironman analogy. That took us to a discussion of various ways to use AI when examined construction data produced by the other side. Carolyn closed with some words of praise of construction attorneys – always a welcome way to end.
- [1:30] What motivated Carolyn to move from business litigation into eDiscovery.
- [3:12] Transitioning from eDiscovery litigator to eDiscovery consultant.
- [3:30] Joining CDE, with their focus on construction litigation.
- [3:55] Where eDiscovery fits in the bigger picture.
- [5:31] Using ESI in depositions: the ideal versus the real.
- [6:41] The logistical challenges of changing how lawyers use ESI in depositions.
- [8:29] Excel spreadsheets: still the exception to the rule.
- [9:18] And when change might arrive.
- [10:06] How eDiscovery in construction litigation is different: different systems, and programs, and data sources that in typical commercial litigation.
- [11:54] The value of attorneys experienced with construction-specific eDiscovery.
- [13:15] Back to the basics to more successfully handle eDiscovery in construction litigation: plan, meet and confer, agree on an ESI protocol, and stay flexible.
- [14:50] The challenge of handling jointly shared construction databases.
- [16:32] Successful approaches to handling jointly shared construction databases.
- [18:20] Dealing with specialized construction software.
- [19:34] Using CAD files and the like during depositions, hearings, and trials.
- [21:02] How ChatGPT is to AI in eDiscovery as the Terminator is to Ironman.
- [23:42] Using AI with construction data from the other side: floating the cream to top and finding gaps.
- [26:20] Using AI with construction data from the other side: diving into specifics instead of just skimming across the top.
- [27:05] Using AI with construction data from the other side: honing in on key decision points and key actions.
- [27:24] Some of the most telling information to be found: which communications go to the senior level and which don’t.
- [28:34] Constructions attorneys: more likely than the average lawyer to use AI for discovery.
- “We have to think about how we use the information we gather in depositions, in motion practice, and ultimately in trial. That really has to impact our strategies as we deal with the data from an eDiscovery collection, processing, hosting perspective.”
- “[The construction industry] uses a lot of unique systems and programs that you don’t see in ordinary business litigation.”
- “The best case scenario is when you have lawyers on both sides of the case who understand the construction industry because they know and they understand what will be required in terms of eDiscovery. One of the most difficult challenges is when you have a novice, if you will, on the other side…. They [can] find themselves buried under a mountain of electronic files.”
- “I think you have to sit down early in the case and talk to the other side about what you each have and what you each need in order to defend or prosecute your case.”
- “If you start with a game plan, just as our clients start with drawings and blueprints and plans and schedules, then you have a better sense of how to manage that volume of electronically stored information and really get to the meat of what you need early so that you can then prepare for everything that comes after eDiscovery.”
- “In a lot of construction cases, the dispute involves information that may be in a database that both sides had access to, they jointly shared information…. One of the things I think needs to be discussed up front in a case is how you’re going to produce – or make available in the case may be a better way to say it – that sort of jointly created database.”
- “I think it’s a lot harder in depositions, but at hearings and trials now you have the advantage of the technology in the courtroom where you can use those native files. The great thing about trials is you exchange your exhibits in advance, which is the hurdle in depositions about using a lot of native files. The other side knows it’s coming. They know and can confirm that the file is accurate.”
- “I think it’s helpful for a jury, if it’s a jury trial, to be able to see the files that the parties were working with as they would work with them natively.”
- “I want lawyers to understand the difference between the kinds of artificial intelligence we use in the eDiscovery world to sift through documents and ChatGPT, which essentially, other than being provided a prompt, works on its own.”