Each week on eDiscovery Leaders Live, I chat with a leader in eDiscovery or related areas. Our guest on March 12 was Megan Lopp Mathias, founder and managing partner of Lopp Mathias Law.
Megan started the discussion explaining how in her practice she helps legal departments get from today to tomorrow. She talked about how the structure of her firm differs from so many others out there, how she and her colleagues help organizations meet their eDiscovery needs as well as find and implement the technology they need, and the pricing models she uses to accommodate their requirements. We discussed the Seventh Circuit Council on eDiscovery and Electronic Data, her role there, and the benefits that have come out of the effort. We looked at mandatory disclosures, pro and con, as well as proportionality. Megan turned to the importance of grit, and from there we closed with her thoughts on the ideal eDiscovery platform.
Recorded live on March 12, 2021 | Transcription below
Note: This content has been edited and condensed for clarity.
George Socha:
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.
Past episodes are available on the Reveal website. Go to revealdata.com, select “Resources”, then select “eDiscovery Leaders Live”.
My guest this week is Megan Lopp Mathias. Megan is the founder and managing partner of Lopp Mathias Law. She is busy with a number of additional roles as well, among them Co-Chair of the Steering Committee of the Seventh Circuit Council on eDiscovery and Electronic Data, board member of YWCA Metropolitan Chicago, a member of the American Bar Association Technology and Science Committee, and a board member and corporate secretary of Life Span. Megan has a JD from Chicago-Kent College of Law, and not one but two BA's, one in Marketing and the other in International Relations, from Michigan State University.
Megan, welcome.
Megan Lopp Mathias:
Hi. Thanks for having me.
George Socha:
Glad to have you here with us. Now let's see if I can not stumble over my tongue too much today as we go through this. I would like to start today, looking at a little bit of what you do and how you go about doing it - in particular, the work you do with legal departments to help them, as I think of it, given how you described it to me, help them get from today to tomorrow?
Megan Lopp Mathias:
Thank you. That's really a core part of what we do here. In my experience at other firms, as a partner of other firms, I found that clients needed a lot more than just legal. Even legal departments, they don't just need the legal work done. There's everything around what the work means and how it gets done. We will often be engaged by legal departments and even other law firms with regard to the process of providing legal services. We help come and look at this process, see the workflows, the technologies they're using, is there a better way to manage contract management. How are they managing their legal spend, their outside counsel legal spend. We sometimes say that we're outside counsel that operates like an inside counsel.
Some companies we take over the law department and run it for them, sometimes as an interim process until they have the infrastructure built out and then they bring in a new GC. That's sometimes called “fractional GC work”. That sometimes has a connotation that I don't like, but it is a common term used for some of the work that we do.
We can take smaller companies… I say smaller, between $50 million and $500 million... and help stand up their legal department for them. It's actually really exciting because you're not just providing the legal. We talk about it on our website and some of the things we do as “Legal+”. It's more than just give you the legal services.
George Socha:
“We” sounds like a lot, and you are a fairly small organization. How do you manage all of that? You're not doing all of that yourself, right?
Megan Lopp Mathias:
We’re not, actually, and that's part of our business model. I also say that we’re a law firm that's not really a law firm, because we don't even have service partners. We use relationships, contracts, contractors. We have other firms. We have vendors that provide the flex; maybe you have enough lawyers, but you need a pack of paralegals to manage something. We can bring, through our relationships, a team that includes, sometimes a COO, sometimes it’s a GC that also operates as a COO, plus pack in the paralegals and get the workhorses in there.
It's more like we’ve built the business model to be able to offer you a legal department or maybe, it's a big project that you have a 12-month need and you don't want to hire people and then let them go so we come in on those kinds of projects too.
"If you're not in that business, it's something that, while lawyers should be up to speed on it, between the technology and the rules it's hard to stay abreast of new developments. That was our role at the Council, to stay abreast"
George Socha:
Part of what you do, I imagine, as all of this, is help them with their internal eDiscovery needs. Tell me a bit about that.
Megan Lopp Mathias:
When I was with other firms, it became very clear that even the sophisticated clients didn't have a handle on eDiscovery. During my time or through my role at Seventh Circuit eDiscovery Pilot Program - which we changed the name to the Seventh Circuit Council on eDiscovery and Digital Information, that took us 6 months to come up with by the way.
If you don't do it every day, you don't do it, really. If you're not in that business, it's something that, while lawyers should be up to speed on it, between the technology and the rules it's hard to stay abreast of new developments. That was our role at the Council, to stay abreast, obviously offer education and that kind of thing.
We do that for companies. They may have a need, like a big litigation matter, or they may need us to come in and as part of what we do, issue-spot and say “Do you even have a document retention process? What's your legal hold situation?” We come in and provide those services as well, as well as help them develop them, draft their policies and also the documents that relate to that. And then come in on projects to help manage big eDiscovery issues, which can save them hundreds of thousands of dollars by having someone that knows what they're doing, manage that process, versus trying to figure it out.
George Socha:
It's often said that there are three prongs to eDiscovery when you're looking at, for example, what a corporation’s going to do. Policy of course, what policies have been developed and are in place? Practices, practice is what are you actually doing or trying to do? And then people - who is doing all of this? Are you assisting corporations on all three fronts?
Megan Lopp Mathias:
We are, in the legal department and as well sometimes, like I said, it includes the executive services too, just depending on the size of the company. That's part of what Legal+ is. Any lawyer can draft the policies, but you need someone that's helping you figure out, “Do you really need these kinds of people managing this particular kind of work?” That's a people problem but also a process issue.
We come in and we assist companies with all of those pieces. Often they will rely on our team for a time frame just to see the difference. We help them, we don't stay in long-term or else I guess we’d just be one legal department. We help them bridge the gap until they essentially recreate what we've done, including with technology.
George Socha:
On the technology front, part of what the corporations need to do, once again, is figure out what technologies they might want to use, how to bring them in, and how to make effective use of them or if they're not going to use them themselves, who to partner with on that. I gather that, yet again, that's something you're involved with?
Megan Lopp Mathias:
It is. It is part of the managed services part of what we do. We have a number of vendors that we arrange that they contract directly with the client, because when we step out we want it to be seamless. Or we can utilize the services, the technology that we have and then decide if that's a good fit before they have to contract directly and redo their systems in order to accommodate the new tech.
We try to come in early. We do a document audit sometimes, a process audit, a people audit, and a technology audit to see what they're doing. There's often technologies that nobody even uses and it saves them money to wipe those out. There's functions within technology they already have and they don't know how to use it and use all those things and maybe become more efficient. There's lots of different scenarios that we come in and help with.
George Socha:
It sounds as if on the technology front, part of the advantage of this approach for a corporation is that, at least with specific types of products, eDiscovery for example, eDiscovery software, they have a chance to test the software out on a system where you've got it up and running and implemented. Then if it turns out that that is the platform or those are the tools they want to use, they can bring those up and running in their own environment.
Megan Lopp Mathias:
Right. That's really the best case and that's why it makes a lot of sense. I feel like I'm tooting my own horn here, but it makes a lot of sense to have someone that knows the tools… we love Reveal, by the way… but people that know the tools and the functionality that they need for that particular client need. Then they don't have to go through cycles of checking other technologies over a long period of time. We can at least shorten that and help get through that process, hopefully more painlessly.
George Socha:
From what you're saying, I gather that in many ways you are helping these organizations get up and running with respect to the functions you deal with. But the idea isn't for you to stay there forever, it's for you to help them get going and then you hand off, they take it from there. Is there an average length of these engagements or some sort of bell curve distribution?
Megan Lopp Mathias:
We like an 18-month engagement, because it takes some time to get to know the people, the processes, and their policies, obviously. There is also then the learning curve of their staff. And then implementation; we don't just drop it and leave, we want it to work. We want to flush out the issues, and there will be issues, especially if they have employees all over the world and may have to make sure everybody's been on-boarded properly with regard to the new tech or the new process.
Sometimes we talk about innovation. It's not even, maybe not technology, it might be how you're dealing with it within your department. That's all human based. We factor that in. We really do prefer the 18 month because we get the best results in that way.
George Socha:
You're right, innovation can take many forms. It's not just the tools you use, it can be the pricing models you use, for example. Is there anything in particular you’re offering companies on pricing models of interest?
Megan Lopp Mathias:
Absolutely. It was hard to do in a large firm environment that's institutional and they have the comp systems and other systems. One person just can't come in and while novel and amazing, you're not going to change the entire way this law firm works, because it filters through everything they do. That's part of the reason I went and started my own firm, so that I could be that flexible.
We’ll get in there sometimes and say “We’ve done enough where we can ballpark what this is going to look like.” We offer sometimes flat rates or put them on a, we call it a quarterback plan, where we stay in and we true up after six months or so. We might put you on 30 hours a month, or 300 hours a month and then realize six months later that you need to be adjusted. We do a true up. They get a blended rate, which saves them a lot of money. We try to be really flexible as it relates to that because that's the whole point.
George Socha:
You have mentioned several times now what I will think of forever as the “Seventh Circuit Pilot Project”. I know the name has changed, but it was a pilot project for what, 10 years or something like that?
Megan Lopp Mathias:
Right.
George Socha:
You've been active in that a long time, tell me about your role with that group.
Megan Lopp Mathias:
We had teams, different committees of course, and then we had a steering committee that helped with vision and planning for the year and where the organization was going to go. It includes judges, Federal judges and state judges. We try to include all stakeholders, lawyers and all kinds of work, small cases, big cases, plaintiffs work, defense work. We had a broad, diverse input when we were creating the policies and principles that were largely adopted throughout the country in Federal courts with regard to our model rules and things like that.
It's really an exciting thing to be involved with, essentially the experts in the nation on this issue, including some of the best judges. Technology moves fast, and as you can imagine the principles weren't necessarily keeping up. That's why it was the pilot program for so long. We were essentially chasing it for a long time. We changed the name because we thought we got to the point where we were no longer a pilot. We came up with the fancy name of “eDiscovery and Digital Information”.
And also offering things that were, I thought, really novel. We did e-mediation services only on an eDiscovery issue. We're not going to try to help you sell your case, but when you come in and you have an eDiscovery complex issue, the magistrate judges want us to help anyway because, again, it's not their daily business. I thought that was really a great program that was offered for free to people and at least the Seventh Circuit courts and that was really interesting and fun.
We also had CLE. We did lots of education. I personally did a few of the CLEs for judges, without practitioners in the room, which was interesting because they would ask the real questions versus when there’s practitioners in the room. I thought that was really interesting because they wanted to know, “Is that how much that really costs, because that's what I'm hearing from…” And you never know. The truth is probably somewhere in the middle, right? So those were really fun to me, that education.
Their website is really full of resources and information. Case law on particular issues, like I have a cell phone issue in Arizona and you go to the website and they have all the relevant cases, which was a great resource for people.
George Socha:
As I recall back when this first started as a pilot project, one scenario that people were talking about was that this would serve as a template for other circuits to then start their own projects. Did that happen? Was this so successful that there wasn't a need for other pilot projects and other circuits? How did that play out?
"Naturally, when MIDP came around - our mandatory disclosure program, which changed entirely how we think about disclosing information, at least on my end, my twenty-some years of practice - they looked to us to help with that as well"
Megan Lopp Mathias:
It really did. We became the shining star of eDiscovery for a while when we came up and we came up with some of the model rules and even forms to use. Those were largely adopted around the country. That was really one of the fun parts as well to be looked at as leading the way on that. Naturally, when MIDP came around - our mandatory disclosure program, which changed entirely how we think about disclosing information, at least on my end, my twenty-some years of practice - they looked to us to help with that as well, so we did have people involved in helping real MIDP, at least in Seventh Circuit.
George Socha:
Let's talk about that. Share with us your experiences dealing with mandatory disclosures and how that has changed over time?
Megan Lopp Mathias:
I think one of the challenges was, and I am in this group, in civil litigation you're used to just hiding the ball. You fight about that, you're creative about that for years sometimes. If the opposing counsel can't get the right request made or doesn't ask the right question, I get to hold that in my pocket. MIDP threw a wrench in that game plan, which is, you have to disclose it without anyone asking, including harmful information. Like, okay.
Now the theory is to unclog the court system, so you're not stuck fighting and doing this posturing thing for years. I get it. We were tracking the numbers about whether… and they still do track it… about whether it was having an effect on the cases and how quickly they settle. But on the other side, now you have people fighting about, “You didn't disclose it instantly”, because it's a lot. Even as a plaintiff and you know the lawsuit is coming as you filed it, you have a lot of information to produce in a very short period of time. And as a defendant, you just got sued and you also have to get every document preserved instantly and then produce it in a very short period of time.
That, for me, goes back to proportionality which is, that's a lot of work to put on in a case. And what if it's a case that doesn't have merit and as a defendant you have to go and spend all of this money? The plaintiff has instant leverage, because just the cost of having to preserve and produce can settle the case, potentially. This going back and forth about whether that obligation should be stayed if there was a motion to dismiss pending in the case and that kind of thing.
It's hard for people to change the mentality of, “We're going to produce it now”, and the cost involved and does that change it. It makes it harder, it's more expensive, and it has some impact on cases settling, I think.
George Socha:
From the studies you've seen, the research you've seen or done, how effective do you think these mandatory disclosure requirements actually have been?
Megan Lopp Mathias:
I don't think it had the effect that people thought it would, at least like the judges and the administration thought. I'm in the trenches, so it has the effect of people now, we’re dug in. “You made me spend $50,000.00 and you have a meritless claim? Now, we're probably going to have to try it.” I don't know if it necessarily had the effect that they thought it would; settling now to avoid that cost, is I think what they thought was going to happen. I think it did have some impact, but now COVID is here, so the data is going to be a little off.
George Socha:
You helped with the preparation of the first round, if you will, of the mandatory disclosure requirements. You've had a chance to see how they work and don't work. What recommendations would you have for improvements to those?
Megan Lopp Mathias:
I think that people shouldn't be caught in a gotcha. You might be the person that should win this case. If you've messed up the eDiscovery production, it shouldn't be the thing that causes the settlement, because you're worried about liability.
I think what could be improved is, give a little flexibility to lawyers and parties. There's a rule that you have to seasonably supplement within 30 days of getting a document, which, if you're a practitioner in the trenches, 30 days is nothing, I might get a document and I haven't looked at that file, because I can't get to it for three weeks and now I have five business days to produce it. You need to think through, how does this impact my case? What does it mean? Do I have to include other witnesses? How is it preserved? Turning something over in a couple of weeks is tough.
George Socha:
Right. 30 days, it sounds like a lot of time, but it is not. Not in our world.
Megan Lopp Mathias:
It would be a lot of time, but we don't have one case, right. So, in theory we hope to not have just one case, so I think it's tough for practitioners. I think it also goes back to the proportionality piece, which is, “Should we have to do this on a case like this?” It's a different analysis if you're in a small case, for example.
George Socha:
Let's focus a little on proportionality. Proportionality has been core to the legal system and practice in the UK for a long, long, time. It migrated slowly over to the US. It became a much more prominent component, at least in the Federal system with the most recent revisions to the Federal rules. Several groups are working right now on materials trying to address the challenges of proportionality and how to address them effectively. What advice would you have for those groups?
Megan Lopp Mathias:
Everybody is working on that concept; I probably say that word every day. Or most days, I say that word. There's a lot of really great people working, The Sedona Conference for example, on these principles. While you would think it brings clarity, it doesn’t. There's a lot that goes into that word and that concept as it relates to eDiscovery. I am definitely not the expert on that, because I know there are people who are way deeper into it, at the Sedona Conference in particular, but I think proportionality should be the leading principle in everything we do. It changes how you approach what's an appropriate response. How much do I preserve? Do I include the unallocated space of these devices, even though the rules have changed on that piece? I just dated myself by saying that, I think.
George Socha:
If there is even such a thing as an allocated space on the drive you’re dealing with, if you're dealing with a drive.
Megan Lopp Mathias:
Right. I think there's a lot of work to be done, but I do think that proportionality should be the driving principle because it can change how you start step one in the case.
George Socha:
Let's switch gears a little bit again and talk about grit. You and I chatted about grit as we were trying to figure out where we would go with this ahead of time, and that came up in the discussion. Tell me about the role and the value of grit in what we do.
Megan Lopp Mathias:
Grit is what I hire for. I can train you to be a good lawyer and great fantastic litigator, but if you don't have grit I can't teach you that. That is something you either come in with or not. I think it impacts people, even including people who get into eDiscovery. It's a unique personality trait that you have to want to tackle this kind of a complex issue and enjoy it. I figure that you should enjoy it.
Grit impacts me as a leader. It's made me a better leader, I think. My story and my life is really what led me here. I'm a first generation college student. My mom lives on a dirt road in a small town, and she thinks I'm nuts for living in Chicago and running a law firm. But a lot of that is grit; it’s getting through it and learning how to navigate it, which is exactly what we have to do in eDiscovery which can be this big massive complex problem that it hurts your brain to start thinking about. And we have to get through it and find an answer. I think grit is so important just in terms of quality leaders and lawyers, but also especially in eDiscovery, it's kind of like part of the deal.
George Socha:
No grit, no good.
Megan Lopp Mathias:
Yeah, exactly right.
George Socha:
I've got one final question for you, which is my ideal eDiscovery platform question. It goes like this: What would your ideal eDiscovery platform look like? Assume everything is possible. Assume there are no technological, financial, or any other limits. What would you want?
Megan Lopp Mathias:
I would want it to be free, because it is unfair and unjust in my mind for people who can afford fantastic tools - which then reduces their legal fees, because the tool does a lot of the work - versus, I say people but companies that often can't even dedicate the resources to it and so we have to be super creative as to how we get through that process. I think that access to justice generally would lead us down a whole different road. But generally the process is so expensive that people are often left in the cold, companies included, because it's an expensive process.
I think having it widely available, easier to understand what the different functionalities are, of the different tools, and something that's more readily available to, not just for one case….
I would love all my cases to be up inside the Reveal tool every day because then you're not packing in the work in the last six months of a case. I think that would be ideal.
I also think that if it could essentially crawl, in terms of like a litigation hold process, it crawls the system with the parameters you give it, helping the litigation hold process because human error ends up being a lot of the issues we see, and often technology can be a solution or helpful. I think that would be something really, a game changer, really.
George Socha:
Great. Well I don't think I can promise you free….
Megan Lopp Mathias:
Right.
George Socha:
But we’ll try to work on the rest of the pieces. Thank you very much, Megan. Megan Lopp Mathias is the founder and managing partner of Lopp Mathias Law. She's been so kind and gracious to join us this week. My guest next week, March 19th will be Ilan Sherr of DLA Piper. Thanks again Megan.
Megan Lopp Mathias:
Sure, thank you so much for your time. This was fun.