eDiscovery Leaders Live: Ricky Brooman of Saul Ewing
As we started, I asked Ricky to tell us more about his role at Saul Ewing and explain what his day-to-day work life looked like. From there, we switched to the “ideal eDiscovery platform” question, with Ricky discussing his wish list including preservation in place, a just-like-native experience when reviewing data from mobile devices, eliminating latency, and introducing softbot assistance. We talked further about mobile data challenges and the importance of appropriate preservation. Ricky shared what he does to stay on top of the ever-changing world of eDiscovery as well as work he and his team do to keep the firm’s lawyers up to speed on eDiscovery. We shifted to the changing dynamic between information governance, eDiscovery, and privacy, and closed with Ricky’s thoughts on native production.
Recorded live on May 21, 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 the chance to chat with luminaries in eDiscovery and related areas. Past episodes are available on the Reveal website; go to “revealdata.com”, select “Resources”, then select “eDiscovery Leaders Live”.
Our guest this week is Ricky Brooman. He is Director of Litigation Support Services at Saul Ewing. In this capacity, he leads a team of six best-in-class eDiscovery and litigation support professionals, consults clients on best practices for information governance and electronic discovery and manages all phases of the Electronic Discovery Reference Model for litigations and investigations. Ricky, happy to have you with us this week.
Thanks for having me, George.
The Role of Litigation Support Services
I'd like to start this week with having you expand a little on what I just mentioned about what you do. Tell us a little bit about what your role involves, a little bit about your day-to-day life before we get into my next question. So what do you do every day anyway?
I work in eDiscovery all day, and information governance. About 50 percent of my day-to-day is working active cases, consulting, managing the process of electronic discovery for litigations, investigations and here and there dabbling with compliance or regulatory matters, depending on the practice area. Probably about 20-25 percent of my job also entails education across the firm. And then dealing with, probably I'd say, 15-20 percent operations and the remaining is leadership.
A lot of time, recently I've spent on education, making sure that we have the right programming internally at Saul Ewing Arnstein & Lehr to make sure that all of our attorneys and staff have the eDiscovery education they need to be able to do what they need to do on a day-to-day, especially in this increasing world of data everywhere and needing to make sure that you're on the cutting edge of technology and workflows to meet litigation needs.
How many attorneys and support staff is your team helping out?
We're just shy of 400 attorneys in the firm or just a little bit over 400 attorneys in the firm and I'd say 200 plus litigators. We have, I think, 15 litigation paralegal, roughly. And on our team there are seven individuals including me, from project manager, to specialists, to litigation paralegal, that kind of crossover between being full time litigation paralegal and being the liaison to our group. There's a lot of synergy between our litigation, paralegals and litigation support to support the litigators in the firm.
There must be, because with a ratio of more than 100 to 1, if I'm counting correctly, you’ve got to be pretty efficient about what you do, right?
We are, and we leverage our business partners to make sure that we're able to allocate work as needed, to meet obviously emerging guidelines as they come. Seldom do you have a lot of time to sit on a project in litigation investigations, usually it's “We needed it yesterday”. And the team does a great job of balancing our resources, understanding priorities, and putting them in line to make sure that we can leverage all of our available resources to meet their needs and deliver the highest, fast legal service possible.
The Ideal eDiscovery Platform
So I'm going to switch gears here and ask you, and often I save this question until the end. But I'm going to lead with this one here. What would your ideal eDiscovery platform look like? And we're assuming absolutely no limitations. Everything is technically feasible. There's no such thing as a budget that you need to worry about. What would it look like?
Preservation in Place
It’s a great question. There's a couple areas that I think that I'd really like to see in an ideal eDiscovery platform. First of all it is integration with the various enterprise level softwares that are heading toward preservation in place. We hear a lot about that recently, in terms of how you can minimize how much data you're taking out of a native source, let's call it Office 365, for example, just use an easy example. To preserve it in place, to be able to cull it in place, using the eDiscovery tool to reach into the data source, search it, and then pull only what you need to into the review platform or ECA workspace or whatever you're going to do further work in but be able to do that preservation in place and a lot of the early case assessment work in the native application with the eDiscovery software communicating directly with it.
We're heading toward that. I don't think we're quite there yet. I think that there needs to be more integration and, of course, that really comes down to the large players in the market and how they're cooperating together. But I'd like to see more preservation in place because it really... copying data and transferring it, only to make another copy later on and transfer it again to move it into the right software, it just increases your data footprint and with the increasing concerns about privacy and security, I think it's really important that the eDiscovery software(s) of the future have a little bit more integration with the enterprise level tools that support the business side of the operations.
Native User Experience
Another area is native user experience. I have often dreamed about the day where if you are reviewing data from an iPhone, let's say, you are in your review platform of choice and the look and feel of your review is very similar to what it would be on that native device. And for an iPhone, we're all similar, the blue bubbles for iMessaging and the green bubbles for SMS and MMS. And just that interface where you can scroll using either hand gesture or something. And I would love to see that in an eDiscovery platform, where whatever the source device is, you have that in your native experience of what that user interface would look like on that device.
I can name a number of other ones from Teams to Slack, you get the gist though. Every time that you want to access a new data set, it would have a different user interface.
So here's a question on that. And let's use an iPhone and Slack as two examples. And let's assume for these purposes that the person we're talking about did not have Slack running on their iPhone, so they only use Slack on their desktop. So we have two different interfaces, right? We can't play games with it all being on the iPhone. What would you like to see when you've got two different platforms and yet you want them to be able to look at the data from both of them together? You want to see the SMS messages off the iPhone, and you want to see the chat messages in Slack.
Related to the same conversation?
I'd love to see integration where you would be able to review them in tandem or at least be able to see a notification. Just like you have a notification in certain platforms that say “Hey, there's hidden content”, you would get kind of like a pop up or alert saying “this conversation transitioned to….” name the platform. And then you click on that and then you're converted over into that user interface, almost like the same experience that the user would have. So if I were going from my iPhone to my laptop to look at Teams and then back to my iPhone, you would be prompted as a reviewer to move through those steps and follow what the end user was doing as they were creating this data.
At the end of the day, when they're on their iPhone and they go on Slack and then coming back to iPhone or going to corporate email, there's almost like a thought pattern going on there. And as the reviewer, being able to follow that thought pattern and understand that communication moves between 3 different sources in an hour, really helps you understand and put yourself in their shoes in terms of what was happening at that time and how the communications transpired and why they transpired that way. Do you need to move over to Slack to access a cloud storage that's in Slack, some documents or something? And then, did you go over to email because you had to pull up a previous conversation that happened four months ago, but then it became relevant all of a sudden again?
And so to be able to kind of walk through that experience and then as a reviewer see that and kind of recreate that experience, I think it's really powerful. So if you could have pop ups that say “conversation, move this way”, I think that would be really cool. And of course, speed is king too, so there can’t be where all the sudden it takes like two minutes to load each new source. It needs to be pretty seamless.
Yeah. So if I'm tracking correctly, as a reviewer you would be able, when you saw a piece of content, to activate something that at your option, at your choice, would immediately bring that piece of content up in context in what looked like its native platform, native interface, native device. And that would be an option. You could jump over and then you could explore from there and then return to where you were and continue with whatever you wanted to do from there. And it would just happen right away.
Well, yes. Without any significant latency concerns, because that is the biggest challenge. All of these new tools that are introduced, they're fantastic. The number one thing that I hear from review teams though is, I need it to be fast. I need there not to be a delay. Because then, and this happens to me all the time, you're waiting for something to load, you open your email, you get distracted all the sudden and then you come back and you get back to review and you've wasted a couple of minutes. Or you're just sitting there waiting with the spinning wheel, waiting for something to come up. Then all of a sudden it comes up and you need to go back to the other screen real quick and another two minutes later, all the sudden it's showing up.
To that end, obviously you need to have the computing power to do this. At the end of the day, I am often logging off and I look at how much cache I have in my browser for the day. And it’s as if I'm a gamer. I have up to a gigabyte of cache, and you need to have the bandwidth in order to be able to kind of have a seamless fluid review experience with that. And so it comes down to as much of software as it does the actual hardware of what you're working with.
So you'd like power in place, you'd like native everything on demand, in terms of the interface. And you'd like instantaneous performance. Anything else in this ideal platform?
Yeah, the final thing I'd say is, seeing more, I call them like softbots, but they'd be like chatbots and voice assistance baked into review platforms. I think that we're a little bit behind in this area in the legal sector, in general, where voice assistance and chatbots are there to help you and do some of the easy answer types of things. And you know, we talked about this previously, but I think that it will be really powerful for somebody that is not that familiar with how to search in a new platform, let's say, to say, “Can you show me all responsive non-privilege documents?” or, “Can you show me all documents that have this individual as a communicator?”
And instead of having to figure out what syntax to use or what fields you need to pull up or something, the voice assistant which is keyed into that specific software is able to pull up and give you at least a preliminary, “Here's the set of documents you just asked me to show you.”
We're already documenting so much and recording so much of the work product in review platforms. But I think that would be a natural extension, being able to ask a voice assistant, “Show me this,” and then it's right there at your fingertips. Or to just with a chatbot, just say, “How do I draw native redactions again?”, and it will just show you either like a short little clip or a three step tutorial, click, here, here, here.
And I think that some of that machine assistance is much-needed in eDiscovery. And I'd like to see more development around that front because you don't always have an LSS person or an eDiscovery technician waiting to answer your questions and maybe you don't have 10 minutes to send an email, wait for the response and get it back. But you want on-demand help right there. So having more voice assistance and what I’d call chatbots or softbots available to assist you in eDiscovery platform, is something that I'd like to see more development around. And I think that would really unlock a lot more efficiencies and reviewers.
Mobile Data Challenges
Let's shift gears again a little bit, more than a little bit. One of the areas that's getting growing attention, but where the options available have yet to catch up with the need, is in the whole area of dealing with content from mobile devices. Mobile devices and eDiscovery, what are your thoughts in that arena?
It’s a moving target.
What should we be doing?
I hear this all the time from our forensic folks. Once you think you figured it out, the mobile devices and the software companies behind those devices are introducing new privacy mechanisms that make it harder to acquire the images that you need or restricting certain permissions to protect the security or the privacy of the device. You need to be agile, I think with mobile devices, especially when they are really important, and take the necessary steps to preserve them.
We see here and there that screenshots are taken of key conversations and sometimes that is sufficient, and the parties don't dispute that this specific screenshot represents the conversation that transpired at a certain point in time. Especially when you have a mobile device that has key information for your litigation or investigation, I think that you need to take the steps to preserve a full image of it every time because you never know downstream when there might be a challenge to the evidence and you need to go back to the original source.
And let's face it, every day you’re computing on your cell phone so much that it's possible that something could happen to the data inadvertently. Whether it is that your kids are watching YouTube videos. I mean, I know my son is watching Elmo on my phone every other day and then I look at him and he’s pulled up my text messages or my email or something like my Gmail. And God forbid something were to happen to an important conversation, had I been a party to a litigation. I think with mobile devices, you really need to approach them cautiously. I think you need to understand how they're used, where the information is being stored, and what the easiest way to collect it is.
With iPhones, collection through the cloud is a little bit easier, I’d say, than Androids. Androids don’t present nearly as many options. But with all the remote collection kits, it really is not that expensive to do a collection these days on mobile devices and to preserve the data that you need. And of course, if you're balancing the cost benefit analysis of doing a full extraction of every piece of information on the phone when you only need a few text messages that prove a certain point in the litigation, it's a menial non-important point, but it just lays the foundation for something, you might be able to get away with doing minimal work. But I always recommend getting that preserved image, because if you do need to come back and it happens that there's more important information or you need context or there’s a question about the metadata or you just need to authenticate the data, you need that image available.
And I see these days that images can be as cheap as $250 for one hour of forensic time and all the way up to a couple thousand dollars. But in the grand scheme of things, when you're dealing with a six figure, seven figure, eight figure litigation, wouldn’t you rather have that cell phone image rather than face sanctions downstream if you didn't preserve it properly and just took the screenshot?
And we've seen some case law come out on that recently, sanction orders coming through where folks didn't preserve data properly and when it was called on to look at their original data, it was no longer there. And you don't want to find yourself in that position, where you're facing evidence being excluded from the record because you can't produce the original.
We're going to see more and more of that. With the collaboration apps, a lot of this information is both stored in the cloud as well as on the device. And it's definitely something that litigators need to be prepared to preserve collateral review and produce.
Staying Connected in the Changing Environment of eDiscovery
You’ve in several different ways talked about the constantly changing environment we need to deal with in eDiscovery. How do you stay up to speed on that?
I do a lot of reading.
What do you read?
I do a lot of reading. So I get the news alerts from EDRM, from ACEDS, Relativity, Epiq’s blog, ILTA’s Daily Digest, ILTA’s in particular, I love it because you can go into your ILTA profile and set what you want to be alerted of and their daily digest gives me at least five or six good articles, anywhere from leadership to professional development to electronic discovery and information governance, that I find really helpful. In fact, I have enough news feeds that I probably only read about 30 percent of what I actually really want to get to. And then I'll just jump on to Legaltech News, Law360, Above the Law, LawSites. And I think that whenever you have a spare moment, jump on, read what's going on, and try to stay up to speed on the happenings in the legal industry through reading articles and blogs and news alerts.
And then another area that I think is really important is just networking with your peers. Find your network, whether that be a professional organization, something internal to your company, or just friends that you've met across the way. As we all know, eDiscovery is a pretty small industry at the end of the day and we bump into each other and before you know it that person has moved to another company, but you stay in touch with them. And it's been a little bit more challenging in the pandemic because for conferences, it's not as easy to network when you're not in person. But I think it's really important to have your peer network and talk to them.
Talk to your teammates. I've got a team, a fantastic, bright team, that they're sending me articles every other day and we're sharing thoughts. And what about this and did you hear about that? And stuff that's not just related to our industry, but rather like the larger sectors of privacy and security and information governance that just weave their way into eDiscovery.
And in a lot of respects, eDiscovery professionals are generalists. We all specialize in something specific. You might be an analytics expert, you might be a project manager, you might be a specialist, you name it. You might be the hot seat guy or gal for your firm. But you still need to know a lot of the inner workings of how technology works. What's the latest in the privacy laws that are going on? What are the security concerns that corporations are worried about? And I think that's necessary to really know what's going on in the industry and to know your clients’ business and the challenges they face. Because at the end of the day, you're providing legal services for your clients and understanding the challenges they face. What's happening in their day to day is just as important.
So I don't think it's enough to just network with your peers and learn about eDiscovery. I think you need to also look into how to be an effective project manager, how to be an effective communicator. What you can do on the leadership front to grow, how to become a better writer, how to improve your documentation skills. So a little bit more of a generalist approach and really kind of pushing yourself outside of your boundaries to understand more than just eDiscovery. But just generally speaking, the legal industry and what's happening in society, to try to keep up with the pace of change.
Keeping Lawyers up to Speed through Education
It's one thing for you and your team to keep on top of these things. At least you all have, I assume, the experience and the background to not have to start from scratch on so many of these topics, you already know what they're about. You've got 400 some lawyers you are supporting. Most of them, I am sure, have very demanding billable hour requirements. They've got a lot they need to keep their arms around. eDiscovery is only a small piece of it. How do you help keep them up to speed?
Through a lot of educational tracks. This past year we’ve launched a number of eDiscovery training tracks and education tracks, ranging from quarterly CLEs to fireside chats to just case law announcements of a key case, all that comes out that we want individuals to be aware of. And I think that you need to constantly kind of be bubbling those up because we are very busy. You may have the best intentions to have 60 attendees, for example, in a training and only 30 can make it. And that is the way things are these days. You get pulled in a million different directions. A senior partner pulls you into a meeting at the last minute or, especially in today's day and age, your child is having a meltdown in the back and you can't make that training that you intended to make because it's too much distraction going on and you need to help out with child care, or for whatever other reason.
And I think it's really important to just constantly bubble up those resources and remind people, if you need to understand something on this front, check this out or have the recording of that training that was presented yesterday for those that can’t attend. Or even if you're just willing to share the slide deck. Putting that content out, bringing it back to the surface again, and making sure that you're just finding a lot of different programming formats as well. Some people like to read a guidance, or other people like to watch a video, and some want to listen to a podcast on their morning walk.
So just putting it out there, even if it’s one educational piece, you're educating one of your attorneys or paralegals or staff, there's going to be a multiplier effect there. When they're on a case they're going to remember the educational piece, bring it up, and talk about it. And then when they're implementing a best practice on their new case with three other litigators that they're working with, you've now spread the information to four different people.
And I think it's just staying consistent, having an education program at your firm or corporation and making sure that you continue to regurgitate what has previously been taught, what is out there, and remind folks that you're here as a resource. Pick up the phone, give me a call. You can't stop by my office right now because I'm not in the office but soon enough you’ll be able to stop by my office and just stay true to the cadence of your educational program so that if somebody couldn’t attend one month, they’re there the next month. Just staying at it. Persistence is key here with education. Not everything is going to meet everybody's needs once, you're going to have to have different programming formats. And again, regurgitate other old educational programs to make sure that you're driving traction to them and people are aware that they’re there as a resource.
The Changing Dynamics Between eDiscovery, Information Governance, and Privacy
You lead a team of eDiscovery folks. You mentioned at the beginning that part of your remit is to deal with information governance as well. Privacy has come up a couple times during this discussion. The three of course are interconnected - eDiscovery, Information Governance, Privacy. Tell me what you see as the symbiotic relationship between those three?
I think they all play well off each other and build on each other. I wrote an article about information governance and eDiscovery probably four years ago about that symbiotic relationship with ILTA. And I think it couldn’t be more true today that a sound information governance program really helps out in eDiscovery because you know where the data lives, you have the data map, and you can rely on that information governance initiative to inform your eDiscovery efforts when you need them.
And with your eDiscovery efforts, as you're walking through the identification, preservation, collection, you might identify areas where you can improve your information governance curriculum. And instead of sweeping something under the rug or being like, “Gosh, I can't believe we're not addressing this,” address it in real time. There's no better time than the present to address something that you can improve on. And so eDiscovery kind of shines a light on what you can do to improve your information governance.
With respect to privacy, I think that's interwoven with both of those; privacy and security are just so important these days. With GDPR, that is really very well underway and all of the new privacy laws that are going into effect in the United States, from CCPA to the new privacy laws that are going to affect in other states, you need to look at privacy in the context of information governance in eDiscovery. Especially with eDiscovery where we're not at the point where we're preserving in place, so we are collecting data, we are moving into a new repository, you need to have a very good handle of how you're going to manage that data across the Electronic Discovery Reference Model, when you sunset it and how you make sure that while you're using it, you are protecting the privacy and the rights of the individuals who data it is. Because there could be new legislation that's coming into effect in the middle of the litigation and you need to be aware of how that's going to play into how you're managing the data from both the collection, processing, review and disposition standpoint.
So, privacy is just becoming more dominant. I think that that's an area that I want to continue to educate myself on as a leader, and make sure that I understand the privacy dynamic and how it is woven into our every day.
The Benefits and Challenges of Native Production
One final question before I let you go. Native production… what do you think? I’m not going to let you off on that one.
That’s a good one. Look, I think there might be certain situations where a native production may be a good option. I know that with natives, you have all the metadata intact, you understand the relationship among documents a lot better. And you can do really strong analysis with native data. With that said, when it comes time to producing, I think that native productions really present a lot of challenges, specifically in the area of document identification and proceedings. Having single-page TIFF images with Bates numbers, there are benefits to it. There's no dispute in terms of what page you're on, it’s an easy site reference. I don't know that just naming natives by a document ID is always the best option.
With respect to redactions, again, that presents certain challenges. You don't know what you're going to need to redact when you're collecting the documents and typically when you're hammering out an ESI protocol it's in the beginning of the litigation. You agree to a native redaction, you may end up just doing a lot of work downstream to say, “Wait a sec, we can't produce this one, we need imaging and redacting,” and then explain yourself to the other side in terms of why it's not being produced natively.
And then of course, we LL deal with this here and there, there are certain families that sometimes you need to break. You need to break them apart for one reason or another. You need to either withhold something that's not responsive and non-relevant to the matter and for some reason there is a family relationship that's putting it together, or you need to redact an attachment to an email, for example, and if you're providing it natively, there's just so many pitfalls that happen. If you just agree to blanket provide everything as native, you then are creating a little bit more work for yourself downstream to understand what families you need to pull back, because there is one reason or another where you can't produce a document natively.
I think that there are certain scenarios where native productions could work. But I also think that there's a lot of pitfalls you need to be aware of and you need to educate your attorneys and staff about what those pitfalls might be and just generally be aware of them because when you educate those that are making the decisions, at least they can be aware of what downstream challenges you might have. And if they're willing to accept those challenges, great. But you don't want it to come as a surprise when all the sudden production is taking four hours rather than one hour because you have a lot more considerations that you need to take into account when you're doing a native production.
Well, Ricky, thank you for taking the time to join us today.
Thanks for having me.
Thanks again. Ricky Brooman is the Director of Litigation Support Services at Saul Ewing. I'm George Socha. This has been eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. Please join us again next week Friday, May 28th. Ricky once again, thank you.
Thanks, George. Have a great balance to your day.