Intellectual-Property-Nemec

 

Now a part of cases both large and small, e-discovery has seen an increased importance in government and criminal cases. But with that increased importance comes a question for those who may be more familiar with the commercial side: Are there any differences conducting e-discovery in a government case?

As it turns out, even if the e-discovery process is the same, there are some secrets that can help e-discovery run more smoothly when dealing with a government case. The “E-Discovery With the Government” panel at Relativity Fest 2018 featured a number of government representatives alongside lawyers who deal with the government on a daily basis.

The speakers, who were expressing their own opinions and not those of their organizations, included:

  • Kenya Dixon, assistant director, Bureau of Consumer Protection, Division of Technology and Analysis, U.S. Federal Trade Commission;
  • Tracy Greer, attorney adviser, U.S. Department of Justice, Antitrust Division, Office of Operations;
  • Tessa Jacob, senior counsel, Husch Blackwell; and
  • Cory Nugent, information technology specialist, New York State Office of the Attorney General.

David Horrigan, discovery counsel and legal education director at Relativity, moderated the panel.

Knowing Your Tech

The first step to dealing with the government, noted Jacob, is to know what your technology map actually looks like. “When we get involved in a government investigation … for a client that I'm working with for the first time, I want to know everything that I can about the data sources that I'm collecting from,” she said.

She added that it's important to know the requirements for a data map before going into a case. She said that even Fortune 500 companies she's worked with don't have a written-down data map. During development, she said government agents often request not only the current map, but maps going back five or six years, depending on the scope of the case.

“Some clients may push back, because it looks like a lot of work,” Jacob said, later adding, “The way I get clients to actually help me respond is [reminding them] that somebody's going to be asking for this. … By having that type of documentation available, you can respond to government subpoenas very quickly.”

Dixon agreed, noting that typically, attorneys come to her office when there's an issue, but being proactive in engaging technology is the most efficient process.

“We've been training attorneys for quite a while to come to technologists or the discovery people before you go to the meet and confer… and take your geek to the meet and confer,” she explained.

Part of being proactive is knowing the standards of the government entity you're dealing with; Nugent said his office's standards come from the DOJ's standards and have served him well. But standards don't cover everything, and it's important to know everything that goes into a production, he added.

Greer agreed, noting the importance of keeping on top of your production protocols. “While we all have our production specs, it's important not to pull them out of the drawer from the last time. … It's important to have them, but don't just copy them from the last time,” she explained.

Of course, not every attorney knows e-discovery—or, an issue that Dixon said she has seen, some attorneys play dumb when they don't want to comply with the government's e-discovery requests. Unfortunately, she said, “We know who those attorneys are.”

In that case, Dixon said, “You tend to become a bit more rigid with the bar and the give and take that comes with discovery. That's not good for the client.” Instead, she added, “My best advice is to cooperate with the investigation so it can be over with,” which will ultimately result in cost savings.

The Benefits of Transparency

Transparency was a key for the entire panel. Greer noted, “It's expensive. I understand that every time I pick up the phone, I'm costing somebody a great deal of money. And I think that recognition works both ways.”

Indeed, she said that there may have previously been a misconception that the government asked for everything because it did not want to sort through data. But the DOJ is trying to get away from that. Greer tells people in her department, “You don't really need everything. You need what you need to do your job.”

Greer added, “There are pack rats in the government, and there are pack rats in your part of the world too.”

There's one area where negotiations seem to be going well, though: the use of advanced tools. Jacob noted that in her practice, “This is one area where I feel the government is way ahead; I have not had any problem with negotiating the use of TAR or advanced analytics.”

Greer noted that the DOJ has posted its model advanced review protocols on its website recently. She said she wished more people came to the DOJ with conversations about what it wished to exclude from an investigation because it wasn't relevant—as long as they are willing to have the DOJ confirm that assessment.

“I think in the face of ever-increasing volumes, we are going to have to get more creative and use things like sampling and testing,” she explained. “This is an arms race that we on the government side of the table are not going to win.”

But there's a caveat, Nugent said: “A lot of people that approach us with their TAR protocols, we have to comb over that very, very carefully, because there's some weird stuff in there. … The level of transparency is one thing, but you can't take that at face value.”

Finally, it's important to remember that government attorneys are people too. That means that not only to treat the people on the other side with respect, but that the government is also like other offices: People talk.

Dixon noted that she's had tough conversations with others in the FTC before, where government officials will tell each other, “We dealt with Attorney X, and this attorney always hides the ball.”

Greer agreed, adding that for the Antitrust Division particularly, “It's a small bar, and people have their reputations.” She further explained that “it's no secret that people hire those who have been at DOJ before to come back,” and often, people on each side know each other.

In the end, e-discovery is a common process, but the process of working with the government may be intimidating to some. Or, perhaps it's the opposite, where some believe the government's limited resources means they can get one over on the government during discovery. But Dixon would caution against that, especially with the rise of analytics.

“If I'm not looking for a term in the old way of doing things, but clustering reveals a thread that I might not have thought of, I'm following that thread and it will take me an hour. That's why I say, dumping on the government? Bad, bad idea.”