Christine Payne, who recently joined Redgrave as a partner, discusses what lawyers want to see in the future e-discovery skills and tools. Spoiler: it's more than just IT abilities.
By Frank Ready | Legaltech News
Convincing lawyers to clear out 25 years worth of email storage isn’t easy, but it’s also not a bad idea. That pearl of wisdom comes courtesy of Christine Payne, who was announced as the latest partner to join the firm of Redgrave last week.
She was formerly co-chair of the electronic discovery committee at Kirkland & Ellis, an experience that will serve her in good stead at Redgrave, which is primarily focused on issues at the intersection of law and technology. On the heels of her move, Payne talks with Legaltech News about why companies should consider ridding themselves of unneeded data, the evolution of e-discovery expertise, and how botched privilege logs can wind up costing clients an arm and a leg.
The following conversation has been edited for length and clarity.
Legaltech News: Companies are dealing with a surplus of data and information. What’s going to be the biggest obstacle to effectively managing that information?
Well, often data is necessary to drive the business forward. But the word “surplus” implies they don’t need it anymore, that it’s junk. I can tell you that lots of companies have lots of junk … Unneeded data laying around can be a target for a data breach. That’s true even if the data isn’t critical, even if it’s innocuous. Sophisticated hackers often use innocuous data to build up their schemes, to learn about the company in detailed ways so that the eventual attack is more difficult to detect. Then second, there’s substantive risk. Who knows what’s in that data? Right now nobody, but if we keep them lying around and it later gets pulled into a review situation, well we might learn that there’s stuff in there that could create liability.
How do you think the preponderance of data will influence the way e-discovery or information governance tools continue to evolve?
We need tools that cannot only tackle large data volumes and do so quickly but which are also transparent enough to be defensible. You want to avoid a situation where an e-discovery [mistake] becomes more valuable to your opponent in litigation than the discovery itself. So shiny technology is great if it can help you move faster and do more, but if it’s not something that I can explain and defend in court then it’s not worth it.
Do you think we’re going to start to see changes in the ways that law firms or other organizations prioritize e-discovery or information governance with regards to their budgets?
Honestly, it depends on the law firm’s business model. E-discovery is a practice area that is highly technical. It’s very complicated, and if you screw it up it can be a huge nightmare for clients and counsel alike. So some law firms are going to be interested in jumping into that work, investing in expertise, and making it a major focus of their business plan. Other firms will dip a toe in. Other firms, to their peril, will assume that any litigator can handle e-discovery and will just blithely plow forward. I don’t suggest that last model.
E-discovery jobs seem like they’re still in high-demand right now, but is the skill set needed changing at all?
For years and years, the bar focused on the nuts and bolts of e-discovery. That made sense for a long time. We needed to collectively get our feet underneath us and figure out how we were going to mechanically get this done. What we need now is a strong shift to strategy, advocacy, and innovation. I’m not going to hire anybody because they can follow a flow chart. I want to see people who are strategic and innovative, people who can speak persuasively about e-discovery.
How do you think the burgeoning global privacy landscape will influence the evolution of e-discovery?
If you’re involved in a restructuring matter involving EU entities, that’s going to be a GDPR rodeo. Anything international at this point—investigations, subpoena requests, diligence, internal investigations—it’s all going to need a privacy analysis. More than that, on the U.S. side we’re starting to see state-by-state privacy regimes set up. California is leading the way, but not all states are going to follow exactly. What we’re going to see is a patchwork of different privacy requirements from state to state, and that is going to make things very complicated, even for companies that only operate on American soil.
Are there other challenges that people should be thinking about with regard to e-discovery that are either happening now or could be coming very soon in the future?
Some months I will spend maybe 75% of my time helping clients through privilege issues, and while all lawyers should understand the basics of privilege, when you layer on complicated electronic communications systems [with] mile-long privilege logs, it can put some practitioners out of their depth. We frequently take over cases where other firms have so scrambled the privilege log process that it’s going to cost the client an arm and a leg to get it straight and they have a significant challenge in rebuilding credibility with the judge.