The Future and the Core of e-Discovery

Aaron Crews, Senior Associate General Counsel and Head of e-Discovery at Walmart, says that the biggest challenge for someone moving from outside counsel to an in-house position is shifting his/her mindset from “being called and asked for answers” to “being a part of the narrative that leads up to asking the questions.” Walmart values “collaboration and consensus,” he says, which means that major initiatives require “building support and getting buy-in and backers.” That affects their strategy
around e-discovery.

Crews spent the beginning of his time at Walmart building the strategy for its e-discovery process, and the legal department is now “very much in the implementation stage,” he says. Walmart’s new e-discovery process includes using cross-functional teams, taking a “core discovery” approach, and utilizing technology, and it is “built to lower costs and dramatically improve transparency and defensibility.”

Core discovery is efficient discovery

Crews says that cross-functional teams are essential because “you get a really efficient, innovative group working toward an answer,” whereas assigning an e-discovery project to a single group poses risks because “only a handful of groups are very good across the entire playing space.”

Placing specialists in each area of the process results in a more powerful, accurate, and efficient result, Crews says. Important roles on the team include data scientists, project managers, linguists, an e-discovery vendor, and a law firm to do “merit level” work and “shape a strategy around discovery and resolution.”

The team should take an “inside-out” approach toward any e-discovery project. Crews also refers to this approach as “core discovery,” which “really accurately captures the concept of discovery as envisioned under the revised Federal Rules.” He says, “In an attempt to gain proportionality in terms of burden and cost of going through a given matter, you should go through the most important and accessible documents first.”

These documents should center around the “handful of people at the core of the case.” Examining those materials first is a strategic necessity for efficiency. “You find answers to open questions in the case, and it sets you in a direction to determine what additional information is needed to answer other open issues,” Crews says.

“e-Discovery goes off the rails when you start arguing about the outside bounds of discovery” instead of working from the core. Crews expresses concerns about people being “priced out of justice” and says that “if litigants and the courts embrace the concept of core discovery and use the Federal Rules as a mechanism for driving that part of the conversation, it will move this country, in a powerful way, to a place where our judicial system continues to function properly.”

Crews looks at e-discovery in a “problem-specific” way, seeking out technology that can help his team reach solutions more quickly. “There are a number of analytical tools available that are useful depending on the kind of data you’re working with,” he says. He mentions Brainspace as one such tool. Others help his team visualize data through heat mapping and concept clustering. His team also “leverage[s] some algorithms to help prioritize data for review instead of starting randomly,” which makes finding relevant information early in the process more likely.

Challenges for e-discovery brought about by new technology

Widespread use of the cloud to store data has created new challenges for e-discovery. For example, “you lose the ability to conduct certain kinds of forensic investigation and to pull certain forensic artifacts because data in the cloud is moved around to optimize its arrangement in these massive server farms,” Crews says.

“The cloud is like a reverse funnel: Everything goes up easily, but it comes down with more resistance.” He says to think about the way someone might digitize his/her music collection and store it on the cloud. “It’s easy to put it all on there, but you only bring down specific files when you need them. You rarely bring down the whole library.” But, with e-discovery, you may very well need to bring down all of the data at once. “This presents planning issues that get tricky if people don’t think about them ahead of time, particularly in litigation,” he says. A partial solution is a “clear, expectation-setting conversation about how to prioritize and the timeline for pulling data.”

Crews says that “the cloud can also have some interesting jurisdictional impacts,” as evidenced by the Microsoft Corporation v. United States of America. “There are some interesting implications there for future international data sharing—and, by proxy, the competitiveness of U.S. companies in the future—that I don’t think have been totally thought through. We have to think about this at a macro policy level before we shape rules that may have ugly unintended consequences.”

Mobile devices are also producing “the same policy dynamics that play themselves out in the cloud space,” Crews says. “Disjointed one-at-a-time answers are being developed in the course of individual cases as opposed to a more holistic policy conversation.”

In addition, the fact that most people now carry a device “with more computing power than an entire roomful of mainframes had” 50 years ago means that there’s “a fog of digital exhaust that has gotten a lot thicker over the last decade or so.” It’s important to understand the makeup of that “fog”: “what might be relevant, what kind of data we should be looking at, and balancing that against a reasonable expectation of privacy.” As Crews says, “It starts to get convoluted quickly.”

e-Discovery’s new role in five years

Crews believes that e-discovery will become more integrated with information governance and compliance in the near future. Although information governance has become something of a “buzz-phrase” recently, “people think it’s either a passing fad or that it will be far easier to accomplish than it actually is.” He is “perplexed” that the issue hasn’t received more emphasis.

But Crews thinks that “key executives and board members” will grow to understand its importance and that “e-discovery professionals will play an important role in data security and compliance. Folks who are strong e-discovery practitioners have a skill set that lends itself to the modern compliance space.” He thinks of them as “untapped resources that can mitigate pain around compliance” and encourages organizations to look at their current talent to see how they might “convert a solution.”

As technology and e-discovery continue to shift, Crews will stay on top of trends. He works with “vendor partners at a development partner level” to express opinions about capabilities and even “sometimes help[s] with beginning architecture” of e-discovery technology. He also reads constantly and “pump[s] a lot of information out through [his] LinkedIn page in an effort to improve the knowledge ecosystem.” Crews says that he keeps new information and technology in mind as he and his team move Walmart’s e-discovery strategy forward into execution.

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