(l-r) Gena Sluga, shareholder at Christian, Dichter & Sluga; Stephen Embry of Embry Law; Stuart Schussel, corporate counsel at Darktrace; and Jeffrey Kelsey, managing director of legal at FedEx, at the Corporate Counsel Symposium in Philadelphia on Monday, Sept. 23, 2019. Photo by Dan Clark/ALM

Different data sets can be best used to help in-house counsel develop strategies by finding ways to prevent litigation in the future and predicting the outcome of certain cases, a panel at the 2019 Corporate Counsel Symposium in Philadelphia, hosted by the Federation of Defense and Corporate Counsel, said Monday.

Jeff Kelsey, managing director of legal in FedEx's employment law section, said the data companies collect can show where to improve and prevent litigation.

"As an internal lawyer it is really important for me to take these technologies and use the tremendous amount of data that we have and protect the company before the litigation occurs," Kelsey said.

He explained right now he has a lot of alert lines that come in every year about what is concerning to employees that might predict where the company is going to have a trend of employment lawsuits. In the realm of employment law, he said he looks to time clocks to get an idea of if and when breaks are taken and if they're not.

"There is no good off-the-shelf system to spot those trends, so we're trying to develop internal processes so that we can gather that information and review it," Kelsey said. "I think that is a fruitful area for in-house counsel to start looking at. As you are updating your systems you have to be embedded and pay attention to what those systems will do."

However, reading data points and predicting what areas a company can improve on will not stop all litigation. In that instance, the data should be used to predict how litigation will play out and what strategies a company should use in the event of a lawsuit.

Steve Embry, the founder of Embry Law in San Diego and author of the TechLaw Crossroads blog, said in his experience data can be used to give insights on how judges rule on certain motions and how plaintiffs attorneys treat certain cases.

"How long does it take a particular judge, historically and from a data perspective, to get to a decision on a particular point of a case like a motion to dismiss?" Embry explained.

Embry said he was speaking to a plaintiffs lawyer who once said he uses that kind of data on the length of time it takes for a decision to help leverage defendants into settlements. He said data can be used in favor of in-house counsel and their outside counsel.

"On the other side with billing and case management, it will give you a much better ability to select your lawyer," Embry explained.

Although that data may be helpful, Kelsey said it is important to have a retention plan in place and to stick with it, no matter what hindsight shows about the data.

"For whatever data you're going to destroy, some of it is going to be useful to you, some of it going to be useful to the plaintiff," Kelsey said. "You don't try to make those determinations. You set a reasonable retention schedule based upon the business needs and then you live with it."