One of the leading lights in the eDiscovery industry is undoubtedly Karin Jenson. As the national leader of BakerHostetler’s E-Discovery Advocacy and Management practice, Karin’s discovery bona fides are both well established and widely acknowledged. Karin is frequently in demand on the eDiscovery speaking circuit and regularly writes for her firm’s blog, Discovery Advocate. Rather uniquely, Karin has trial experience in her repertoire, both as counsel and as a juror. I recently spoke with Karin and had the chance to listen to her views about some key eDiscovery issues affecting clients, counsel, and the courts.
1. Tell us about your background and how you developed your expertise in eDiscovery?
I was a newspaper reporter in Cleveland in my first career and BakerHostetler represented me in some First Amendment matters. The attorneys I worked with inspired me to go to law school and I joined the firm after I graduated. In one of my very first BakerHostetler cases, there was a spoliation allegation. At that time, the law on the spoliation of electronic information wasn’t as developed as it is today. After that, I noticed that there were spoliation allegations – or the fear of them – in nearly every case I worked on. It seemed like these issues were only going to become more prevalent and complicated over time. I began to formalize my education in every way I could professionally, particularly by joining The Sedona Conference and attending the Georgetown Advanced E-Discovery Institute, two important voices on eDiscovery from the start.
As national leader of our E-Discovery team, I advise on preservation and discovery for many of BakerHostetler’s cases across the country, no matter what the size, shape, or challenge. For the last 2½ years, I have been leading the Discovery Management Team for BakerHostetler’s court-appointed representation of Irving H. Picard, SIPA Trustee for the liquidation of the Bernard L. Madoff Investment Securities LLC. With more than 700 cases currently in litigation, it has been a tremendous opportunity to manage discovery in this large-scale, sophisticated matter. In both roles, I am focused on existing and emerging discovery issues that need to be understood to protect our clients’ interests and to keep litigation focused on the merits. I always was and still am a commercial litigator – and I try to use that experience to rein in the scope of discovery to only what is needed to resolve the dispute.
2. How has predictive coding changed the nature of discovery practice?
Necessity is the mother of invention. As humans find more ways to communicate using technology, we are forced to come up with unique methods for dealing with the vast amounts of data in litigation. We use predictive coding – and analytics generally – when we believe that text analysis, sampling, and machine-learning can efficiently get to what matters quickly, and defensibly reduce the number of documents to be reviewed. Predictive coding is one of many ways to get to a result and – as always – works best when coupled with skilled advocacy. For example, in a recent case I consulted on, there were millions of documents at play. At first, it looked like predictive coding was the solution. However, after discussing the scope of discovery with our adversary, we agreed on a discovery plan that narrowed the universe of production to less than 20,000 documents out of millions. We then used analytics, categorization, and clustering to better organize those documents into groups of similar documents, which further dramatically reduced the review time and increased the reliability of the results.
3. Which – if any – of the pending FRCP amendments will have the greatest impact on the discovery process?
Talking about preservation at the Rule 26(f) conference. Exchanging document requests before the Rule 26(f) conference. Requiring specificity in objections to requests for production of documents. These things are already happening in lots of cases, but the rule changes will help give momentum to the movement. Taken together, these changes may be a little difficult for clients who are accustomed to a billing “discovery blip” mid-case. More time will be spent up front as attorneys determine what’s needed to support the claims and defenses, what evidence is available to make the proper showing, how documents should be triaged and why, and then discuss these issues with their adversary. But the benefits of that early effort can be exponential when clients aren’t spending money to process, review, and produce documents that no one needs, and nobody’s wasting time on a spoliation sideshow.
4. What effect have mobile devices had on ESI preservation and production efforts?
One of my favorite lines is “everyone has ESI in their pockets.” The biggest effect of mobile devices is that they have led to more of everything – more emailing, more texting, more information, and more complex information governance challenges. But just because there is information on a smart phone or tablet doesn’t mean that it should come into play in preservation or discovery. You have to ask the questions – is there any unique information on the mobile device? Does the client have policies about company-related communications on a mobile device? Does the effort to preserve the information on a particular phone or tablet outweigh the value of the substance of the information? Just because information exists doesn’t mean that it has to be collected and produced. You have to think about what you are trying to accomplish for the case and the justification for taking the step to collect and produce it, or not to.
5. What was the most significant aspect of your experience serving on a New York City jury in 2014?
It was a two-month murder trial, with two defendants. We, the jury – BONDED. There were many takeaways for me, but here are two I can share. First, mobile devices are good for more than just the content of messages. The district attorney presented several days of evidence documenting where the defendants’ phones were before, after, and during the homicide. These facts corroborated the witnesses’ testimony about the defendants’ locations. The second – consistent with my view on conducting discovery – is the power of cooperation. Enough with the sidebars! Do your best to work it out when you aren’t on the jury’s watch.
Thank you, Karin. Our best wishes to you with your work.
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