eDiscovery Leaders Live: Suzanne Clark of eDiscovery CoCounsel PLLC
Suzanne and I started by discussing her role as discovery counsel working with plaintiffs merits counsel and what that entails. We turned to how Suzanne uses AI, particularly Reveal’s Story Engine, in her job, to be more efficient and effective – quickly learning details about individuals, understanding the emotional components of their communications, looking for anomalous activities. She discussed, as well, using AI to identify gaps in productions from opposing parties and digging into gaps, both known and unknown. We discussed the upcoming University of Florida Law eDiscovery Conference and along with it the great value paralegals bring to eDiscovery. Finally, Suzanne gave us her ideal eDiscovery platform pain points and wish lists – the most detailed ever!
Recorded live on February 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.
Our guest this week is Suzanne Clark, Discovery Counsel at eDiscovery CoCounsel, where she works as Discovery Counsel alongside with merits counsel; she's been there since 2017. She also is a member of EDRM’s Global Advisory Council. In the past Suzanne has been, among other things, an associate professor at Cumberland School of Law, a board member of the ACEDS Jacksonville Chapter, an associate at a couple different law firms, and I think she's had a few things going on on her own, in terms of software development and the like. And at one point was a mediator, part of the Florida Supreme Court Certified Circuit Civil Mediator program. Suzanne is a double-gator with both undergraduate and JD degrees from the University of Florida. Welcome, Suzanne.
Thank you, George. Glad to be here.
The Role of eDiscovery Counsel Working With Plaintiffs Merils Counsel
Glad to have you here. Before we dive into the things you do with eDiscovery, the tools you use and the like, tell me a little bit about what it really means to be discovery counsel, working with merits counsel. What do you do in your day job here?
"I feel like it’s a new area of law, a new practice of law."
Okay, I'd love to. It's not something I envisioned when I graduated law school in 2002. To me, I feel like it’s a new area of law, a new practice of law. What we do in our firm, is we connect as co-counsel with merits counsel on plaintiffs’ side, typically mass torts personal injury cases. Chad Roberts is the owner of the firm and he was a personal injury attorney for decades and got bitten by the eDiscovery bug as we like to say. He realized that there was somewhat of a dearth of eDiscovery on the plaintiff's side, because you're not dealing with clients that you can call up and say “Hey, how is this IT system working and this and that”. He created this firm and I was able to join him.
What we do is, I think in large defense firms usually somebody falls into being the discovery counsel, and then that firm knows to call that attorney at their firm whenever they have eDiscovery issues. For plaintiff firms that might just have a handful of attorneys, nobody is really going to get that role. It happens sometimes but often it does not. This way, these firms are essentially able to share us as a resource in a way. It makes them a scalable resource and when they have a large case that has a large volume of data, they are able to bring us in just on an as-needed basis and we’ll say, “Turn up the volume, turn down volume, scale us as needed”. Does that answer your question of the vision of the firm?
Yes, it does. I’m curious about one part of that. There will certainly be matters where there's one plaintiffs firm involved, but there are plenty of matters with multiple plaintiffs firms and where quite likely no one of those firms has someone with your level of eDiscovery expertise. If they bring you on board, how do they share you across the multiple firms, if they do?
That's a good question. Usually you have a leader. You'll have the plaintiffs steering committee and then you'll have a leader on that committee and that would be typically who we would be definitely connected with. We also use platforms for collaboration, like SharePoint, or we work with the eDiscovery vendors and so often everybody will be logging into the same platforms and things like that. These steering committees always have weekly or biweekly meetings. I get plugged into those because I'm going to be the bridge between merits counsel and contractor reviewers or paralegals or anybody that is doing work on the documents and discovery. It kind of depends on the different matters, but we'll find collaborative tools to work together.
I'm much more familiar with how it's handled from the defense side. There have been situations where I or people like me would be retained by a single firm and available only to that firm, retained by a single firm and available as a shared resource across multiple firms, and then retained by the group where they would pool funds and pay for someone like me out of those funds. Is it essentially the same thing on the plaintiffs’ side?
Yes. Yes, I've had in the past where they had a joint bank account they used and our agreement was with the entire committee and our invoices would be paid through that. We have other times where we're with one firm and they need to be looped in any time somebody else is asking us, because while behind the scenes they are sharing costs, they want to know because they're ultimately in a contractual relationship with us. So yes, all three of those.
I’d like to turn to the tools you use to get your job done in eDiscovery, and let's start of course with one that you use quite frequently, the Story Engine. Tell us a bit about what you're using and how you're using it?
Okay, I'll just get into the weeds and practical on what I do in my job. What happens is that I am this extra, like I said, new discovery counsel. I wear so many hats that might have been worn by, okay, we have a paralegal do this, and we have an associate do that, you know, the partner would do this. What happens is, those different people delegate to me to get me to help them. One of my favorite things to do, because I feel like it's the most impactful in the litigation - and I did go to law school so it makes me feel like I’m right in there with the motion filing and drafting - is when there is a motion that needs to be filed and there's one particular associate that I have a wonderful working relationship with, where if he’ll say, “Okay, I'm going to be drafting this motion, whatever it is, and this is the case law I'm going to be using and these are the points I want to make. Can you find me documents for each of these bulleted points?” Whether or not I can, actually impacts his arguments and things like that, because if they exist, great. If they don't, it's just the facts. I'm all about, what I do is it's the facts. You go to the gray area manipulator of these fats in your motion.
My first stop on that train when that assignment had been given to me, is Story Engine. I will go into Story Engine. I probably already know the data somewhat because I've been working on the matter and now we have a motion coming up. I will say, “He's looking for this, how can I prove that”. I'll start typing and I'll think of key words myself and so I just go and dive right so in. In Story Engine, I'll start to get suggestions auto-populated out. If we're responding to a motion to dismiss for lack of personal jurisdiction and I'm looking for contacts with a forum, I can start to type a state name. And what's going to happen is, the state name will pop up and I can automatically get the search on that. Or, the name of the state in a hospital or the name of the state in the university or whatever is in my data, it acts like Google and it starts to auto-populate, “What do we think she wants?” What does the system, the artificial intelligence, think I want? I'll see misspellings of names. If I'm looking for certain people, I’ll see nicknames. All of that will just pop up for me.
I am typically the receiving party, which means I don't go talk to Robert Jones and interview him and say “Do your colleagues call you ‘Bob’? Or ‘Bert’? Or ‘RJ’?” I don't get to talk to them, so the system is doing that for me, where it's letting me know about the contents of the dataset and people in the dataset.
That's just one very narrow little way I use it. There's so many other ways. I can limit by date ranges. I can play a video of the communications over time and see where the spikes are actually flowing across my screen. I love the way that it shows the interrelations of custodians.
That's another thing I do, is just go in and go, “Tell me about this person”. I get an email. I just read about this person. I don't think we have asked for that person's custodial file. Tell me what you know about them from what we have. I can pull up their business card which is their signature line, their business card over time showing promotions and what they were doing at different times, who their key communicators were, who else they were communicating with, so that we can say “Okay, well they're just like this person and probably already have all their data because, you know”. Or not.
And sentiment analysis. When did they have tenuous conversations? When did they have out of normal business hour conversations? So that if I want to just drill in on those and just get an idea for anything that we might need to know about them.
I can give a report back in about 10 minutes. And then we can decide. It's not doc review of, “Let me pull their file, let me search out their email address and start reading documents”. We can do that if we decide they're important enough.
This really helps you cut to the chase and get what you're looking for much more quickly, it sounds like.
Yes. I want every attorney to be able to go in and get their stuff without meeting teams and teams of people when you are at the level of drafting a motion in court or preparing for deposition. Yes, when you're doing responsive/nonresponsive review, you need legions of people and you need to be able to organize that well. And that’s a whole other area that is under my hat I wear, but I want attorneys to know there are tools for you where you can go and do it yourself in a way, or get somebody like me. But that's just one person.
Another thing about discovery counsel that came to my mind, it's the collaborative team. When I was saying how I had this great relationship with this associate, I also have this wonderful relationship with the project manager. These are people that aren’t at my firm, but they're colleagues and we're working together and we have camaraderie and we are, “Go team, let’s win this, we're all in it together”, kind of like being in a sports team together. You're the defense, I’m the offense, but we're working together.
Some of the things that I imagine you would try to use tools like this for would be if you're trying to show, for example, contacts with a specific forum, if there's a motion to dismiss for lack of personal jurisdiction, or something like that. Does it help for things like that?
Yes. Oh, absolutely. And that goes in line with what I was saying with getting the bullet points spelled out. When I'm going to be making my argument to the court or when my co-counsel is going to be making their argument to the court, they've researched the case law and they are seeing what the particular forum, like that court is looking for minimum contacts, this is a statement I'd like to make. I want to back this up with documentary evidence.
So yes, then I can go in and I can say, this would prove that and I will go find that in the documents if it exists. And it may or may not, but my co-counsel will be able to quickly see where they have, what they need, and where it’s lacking and if they need to find other ways to prove those points.
Identifying Gaps in Production
So unlike a sort of a generalized review for relevance or privilege, this sounds like a situation where you've got a very narrow targeted objective. And you're not trying to find each and every email message, word processing document, whatever it might be, that has something in it that is related to that issue. You're trying to find some key pieces that are really going to pack a punch to make a point.
"It’s evidence. It’s practice of law. It's why we're here."
Another thing I do is identify gaps in productions. That's everybody's nightmare when they're the receiving party: “No matter how much I get trained in eDiscovery, is my counterpart on the other side of the ‘v’ properly identifying and preserving and collecting, reviewing and producing electronically stored information?”
I've had people ask, “How do we know we're getting it all?” We don't and we don't have to. We are entitled to a reasonable, defensible production, coming into us. I use tools to identify when that's not going on. At that point, we can get 36(B)(6) depositions for the person who knows the most about the information systems. We asked for that at the beginning of cases and we get protective orders, but if you start to identify gaps…
What do we always say in eDiscovery, “Don't just go complain to the judge, show the judge”? Don't just say, “This is VOLUMES of data, it’s to the MOON and back. It's going to cost us THIS much!” You say, “Judge, this is how much it is even when we use these tools”, so we can say, “Your honor, we're not just suspecting this. We have a gap in this date range. Was that a custodian on leave? We'd like to know”. Or, “We've been told this custodial file was destroyed because of the records management policy, however we have documents from this custodian who also left the company from that time period, so may me please have a copy of the records management policy so that we know whether or not it was followed throughout the litigation?” Things like that, and the reason why we want to copy of it.
Finding Unknown Gaps
I imagine there are situations where you know where you strongly suspect there's a gap of some sort. And that's relatively easy to figure out, but what about the situations where you just don't know what sort of gaps you want to be looking for, how do you look for gaps there?
There are many ways, and one is that it's incorporated into our workflow for document review. We do have the level of document review as a service that we provide, and sometimes we bring in contact attorneys, sometimes we're able to handle it ourselves internally, sometimes we train associates that if you have multiple firms and the firms are saying we're going to add associate time to our investment in this project, we're training associates. We will create a workflow for document review where while you're reviewing, we could have a field with choices for productive efficiency: the text didn’t come through, or there's redactions that are inappropriate, or they can add choices. As they start to identify things… Missing metadata, that's something that can usually get at the front end but if we dive right in to review and we start to see we're not getting the dates of these documents. Things like that. And we may need them sooner than we get them back from the other side, so we might enter a manual date field. Things like that. So they can do that while they're coding.
Those are situations where as the reviewers are going through the documents they identify what appear to be gaps and then you can, having identified that potential gap, dig in and try to figure what's there.
Exactly. I can pull reports to the production deficiency field and start to see the volume of the different… If you’ve got a team of reviewers, somebody might create a choice and it gets marked once. But somebody might create a choice and the other reviewers see that choice and say, “Oh, I've been seeing that too”. And then I start to see that saved search fill in with “Okay, now we have 50 documents with this problem”. Then, I can go in and look for it on the back end.
I would imagine you can also use things like timelines and communications maps to try to identify, if you will, the missing constellation. We live in the northern hemisphere. We look up at the sky and we identify constellations by the stars we see. We had a great fortune to spend nearly a month in Australia many years ago, and when we were in the Red Center, one of the people we were with pointed out to us Southern constellations and those are composed… Of course there are constellations we're used to but they had something very different. They are the constellations, if you will, the shapes in the sky formed by the places where there are no stars. The gap there. It's a roundabout way of asking, what do you do to look for those gaps?
You identify patterns, groupings of things. Sometimes it's manual and sometimes it's using the tool and it can just be, “We're missing the speaker notes from this document”, so I'm going to find similar documents and see if we have another copy because they may have sent us the actual PowerPoint and then they had also had it print to PDF on their computer, so I'm saying I want to make sure we have the actual PowerPoint and I'll find similar and group them all together.
You compare other like documents. Say you have meeting minutes that use the same format over and over and over and over every week or every month. You start to gather all the meeting minutes together and you start to say, “This is where the attendees were, these are the topics they always talked about”, and then you can see if something's missing or maybe something was moved or something like that. And that stuff can go on, the more nefarious stuff, which usually I find it is a negligence type of thing. Does that answer your question?
The Upcoming University of Florida Law eDiscovery Conference - And The Role of Paralegals in eDiscovery
Yes. I'd like to switch gears a little bit here. We have a conference coming up.
That’s right. March 18th is the, there you go, your advertisement right there. March 18th, we have the eighth annual University of Florida Law eDiscovery Conference. I'd like to pose a question to you in connection with that conference. Really a question for me to pose to you from Sheila Grela, which is, what would non-attorneys, especially paralegals, get out of attending that conference?
I think the UF conference was originally aimed at let's make sure all of our graduates are up to speed on eDiscovery if they graduated years ago before the course was offered, etcetera etcetera. But the content of this is using eDiscovery during the litigation life cycle. If it's aimed at attorneys, it's aimed at attorneys who are going to be supervising and delegating tasks to their entire collaborative team. We're going to have a panel on short messaging apps. Attorneys, yes, need to be thinking about that, but paralegals are going to be the ones they're asking to go figure out how to find a service provider, how to get that collected, how to practically, boots on the ground, get what we need from that data. That's the first one that springs to mind on this.
We're also talking about search. If I'm wearing that litigation support paralegal hat, where merits counsel is asking me, “Find me this grouping of documents”. Well, merits counsel I work with has me. Other merits counsel out there has their paralegal team and their lit support team.
Learning all about search, learning about how to set up document reviews and make them better, those are the tasks and that's the job responsibility of paralegals, especially paralegals who are elevating themselves to litigation support. It going beyond just getting this in the right format to file with the court in the e-filing system, which most attorneys can’t do, so they need it. But also learning the review software and wouldn’t be great to be able to set that up and get a review team going and support them. So, that yes, their eyes are on the document doing the substantive work but you are supporting them in that. And the UF conference will teach everybody how to do that, give everybody takeaways, every collaborative member of the team. Not just paralegals, not just attorneys; project managers, service providers, salespeople, everybody in the eDiscovery industry this conference is for.
The conference this year, again March 18th. Suzanne, obviously one of our speakers and one of the….
There you go, a double-gator, a member of the planning committee and one of the speakers. The conference is virtual, as it has been since its beginning. This year however, it's entirely virtual; every year before we've done virtual and live, and this year it's free for all. You can find out more information and register at ufediscoveryconference.com. Now, I’d like to turn….. Yes, go ahead.
I told one of my colleagues when I was sharing it yesterday, I said, it would take you months if not years of practice to have the issues that are going to be discussed in this one day come up across your desk for you to learn it as you do your job, but you can get it all at once in one day at the UF conference.
The Ideal eDiscovery Platform
There we go. I would like to turn now to our last topic of today, which is what would your ideal eDiscovery platform look like? And I know you've done your homework.
I did, I just did. I’m going to get a chance to say all of this, and I don’t know if we can do it in three minutes, George.
You got more than three minutes, I don't cut you off in three minutes.
Great. So, I first came up with some pain points and then I came up with some ridiculous wish list items that, maybe my children when they're practicing eDiscovery will be able to have.
Autosave Coding and Notes
Autosave of coding and notes. I try to tell people, “Save as you work, save as you work”. But what happens is people get used to their MS Word saving for them and they get in that habit and then I get the call of, “It refreshed and I wrote all these notes into the text box”, and all I can do is say it's a software and I don't like having to say that. I like to be able to have a problem-solving session.
Append Notes to Text Box Field While Mass-Editing
Another wish list for a pain point is appending notes to a text box field when you’re mass-editing. If I want to make a note on a grouping of documents, I can't, because I think, well the attorney comments may already have notes, and so I would be over writing that if I mass-edit notes.
Now, I have solved that by creating an entirely new text box field, but the thing is, if you work long enough, you're going to start over writing your own text box field, and think “Did I write something about one of these before?” I wish we could just append notes somehow in text box fields.
Super-Widgetize the UI
The ability to expand and pop out and enlarge panels and panes on the coding layout or in a place where you're creating a search, so that you're not having to scroll and scroll if you want to resort things. Click and drag is nice but I want to pop out every single pane. I want to be able to think about my conditions and my fields and my sorting all at once, and not have to click from pane to pane to pane.
Multi-Monitor and Multifunction Capabilities
Another thing is, and I have this down as… Oh, you don’t have my list. Multi-monitor and multifunction capability. If I’m in a document and I say, I want to add a new field. I can add choices while I'm in the coding layout, but I would like to be able to go to the place where I’m going to add a field and stay in my document and not have to lose my place to go make a field to continue working. I want to be able to pull over to this monitor, pull over this monitor and work in my field creation area and in my document area at the same time.
Saved Field Sorting
Saved field sorting. One of the great functions I like to provide or the services I like to provide to my merits counsel, is that when I create a saved search for them, I make the list that pops up with them, I anticipate their needs and what they would look at in a list. It’s a pet peeve of mine to get a saved search created with just doc ID, and to the point that I made a standard field selection on all searches and work spaces. If I could have several saved field sorting and not have to go back and remember... I guess I could create saved searches for this, I’m thinking of a work-around as I talk about this. But where for different functionalities - depo prep for merits counsel - there’s going to be certain things they’re going to look at, they may have had a separate coding layout for their depo prep and they're going to want to look at certain work product metadata fields on that one. Or when they’re doing QC of doc reviewers, they're going to want to see who reviewed it and how they coded it. Just the reverse-level review coding, saved sort field. So those are my pain points that I wish there were workarounds for. Is it okay for me to just spurt all this out?
Without having conversation. Okay. My wish list, which I don’t know if there's a way to do this but there are so many creative minds out there.
Automatic Boolean Correction Suggestions
Automatic Boolean correction suggestions. Sometimes I have human error. I mean, oh gosh, can you imagine, I don't look like somebody that would make a human error, right? And I'll create a Boolean, and I typed out this beautiful Boolean syntax and then, error, your search has errored, and you have to go back in and say, “Where’s my parens?” If it popped up and said, “Your search has errored. Did you mean to put it in parentheses in this part of your search?” with a little highlighted parens and I could just say, “Yes, rerun the search”.
Simultaneously Running Keyword Searches and DT Searches
Then I had said to you, simultaneously running keyword searches and DT searches, because they come up with different results. If there was a way to run them simultaneously so I don't have to make two searches to compare and contrast, and then have the system identify the differences with an explanation of why, technically why they're different and then I could substantively decide which search is better.
Touch Screen Capability
Touch screen capability, we were talking about that, how I might just want to rearrange my screen when I am rearranging fields. Say I’m looking at a long list of fields - because that's how my mind works, I love rows and columns - and the workload that I have decided on for that moment is that say I need to compare by MD5 hashes and sort by MD5 hash. And on the twentieth column, if I could just go there with my finger and drag that column over so that I don't have to buy a bigger monitor or scroll back and forth on the screen - or just to be able to swipe. You don’t need to click and drag, just swipe your screen.
Then I would love to be able to use my stylus and start to write into the filter box. I’m going to write into the filter box what I want, instead of having to type. That's where I was going to say the stylus, where I could get the recognition of my handwriting, a lasso tool with your stylus to move things around on the screen. Some sort of super OCR, where we can get a handwriting sample from the custodians and then feed it into that system so that…. because George you and I actually talked about this before, you might not remember. Why does my iPad and my good notes app recognize my handwriting, but at work it's not recognizing these people’s handwriting and it's because it's learned my handwriting, it knows my handwriting.
Autofill and Searching Filters
I just got two more. Autofill and searching filters. I find that autofill makes me have ah-ah moments of “I did not think that”. If I am starting to type a word and I get suggestions, it could expand my thought process. Even if I'm just filtering, if it would give me suggestions… Say I want to search in the filter of the extracted text, for example, that might help there.
Voice Recognition and Collaboration: My Own Jarvis or Bianca
"If Iron Man has Jarvis, why can't I have my own AI?"
And then voice recognition and collaboration. My final request is, if Iron Man has Jarvis, why can't I have my own AI, like “Bianca”, where I can say, “Bianca, I would like to create a search that excludes these three terms but has these three terms, will you please do that for me?” “Yes Suzanne, I will get right on that. Would you like this to be Boolean?” or whatever the other expansions are that you were telling me about on the pre-call.
Well, I can't promise delivery of any of these capabilities tomorrow, but we'll see what we can do! You have gone above and beyond in terms of your preparation of a wish list. You’re setting a new bar for others to try to cross in the future.
If you don't have a dream, how are you going to have a dream come true?
Thank you. Suzanne Clark is Discovery Counsel with eDiscovery CoCounsel and will be joining us again on March 18th for the UF Law eDiscovery Conference. Thanks Suzanne very much for joining us.
I am George Socha, this has been eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. Our guest next week, March 5th will be Damon Goduto of Lineal where he is a partner. Thanks again, Suzanne.
Thank you George.