Former Kirkland & Ellis of counsel Vanessa Barsanti recently traded in Big Law life for e-discovery boutique Redgrave. In a chat with Legaltech News, she discussed recent court orders cracking down on "petty" discovery issues and how e-discovery can weather COVID-19's societal and financial storm.

By Victoria Hudgins | Legaltech News

Last week, Kirkland & Ellis of counsel Vanessa Barsanti joined e-discovery boutique Redgrave LLP as a partner.

To be sure, Barsanti isn’t the first to forgo Big Law for Redgrave. Last year, former Kirkland & Ellis partner and e-discovery committee co-chairwoman Christine Payne became a partner at the boutique.

Barsanti previously worked with Redgrave on e-discovery matters during her nine-year tenure at Kirkland & Ellis. She said the opportunity to work at Redgrave and specialize in e-discovery was too great to pass up.

Due to the COVID-19 pandemic, demand for e-discovery is only growing. While corporate clients are becoming more cost-conscious, Barsanti pointed to increased restructuring cases and the expedited discovery needed during a corporate restructuring as opportunities for e-discovery.

In an interview, she discussed the challenges of collecting data from a now-decentralized workforce and the ways in which the coronavirus may chill “petty” discovery arguments. The interview has been edited for clarity and length.

Legaltech News: As law firms, including Big Law, make staff and attorney cuts, do you think more e-discovery-focused lawyers will exit Big Law?

Vanessa Barsanti: I think working at places like Kirkland, those kinds of places are still doing fairly well. I don’t necessarily see a ton of people exiting at this time unless some really great opportunity comes up or they are asked to go for some reason. There definitely was a dip when COVID started and a lot of uncertainty, but I think those really big firms are really strong.

I actually think the reaction to me moving during this time was a little bit more of “Are you a little crazy? You’re leaving during this when you have a really good job?” But I couldn’t pass this up.

How will e-discovery adapt to remote work during the COVID-19 pandemic?

A lot of the data is housed electronically and you can access it electronically, but there are certainly clients that have tangible assets, hard copy documents that are relevant to a litigation and are important. I think that is a challenge right now.

We want to make sure that if something tangible like that needs to be collected that we are doing it the right way, not only from the forensics aspect but from a security perspective—making sure that all the correct policies are in place and you’re not putting people into unnecessary danger. I do think everyone is being understanding about that, on the plaintiff and defendant side. I’ve had these conversations, and I think people are being very reasonable about the times we’re living in and taking a hard look at how important that [data] is and whether or not it’s worth pushing for.

I think the other big change is so many of the vendors that provide managed review, they are very used to doing that in person. … I think people are learning to shift that to remote work, and they’re dealing with the infrastructure and supervision aspect of that. Plus making sure if those reviewers are not physically present, that they’re sitting down to do their job and reporting their time accurately.

I’m a big supporter of remote work, and I think it’s important that people utilize the reviewer analytics tools that are available to check in and see how many documents has this person reviewed compared to another reviewer. You get a sense by looking at that, what the range of reasonableness is and making sure people are committed to their job.

Does a decentralized workforce, for opposing counsel or from data subjects, pose any challenges for e-discovery?

When you’re doing a collection interview, you ask about how many USBs do you have that you think has relevant data? What hard copy documents do you have that may be somewhere else? Not only is that hard to ask depending on what it is and what the systems are, it’s hard for people to know exactly if [they] haven’t been in the office for three months.

In terms of working with my team or working with other counsel, I can see some lack of coordination from some firms where it seems like they maybe didn’t get all on the same page. I’ve seen from plaintiffs counsel that has been a little unorganized. I don’t know if that’s a symptom of COVID.

Has COVID-19 created any opportunities for e-discovery?

I think there is an opportunity to reach more agreement with the other side. I think at least right now people are a little hesitant to file motions to compel or write discovery letters to the court [or] ask for court intervention when there are so many crisis issues in the world.

We’ve seen some pretty serious crackdown opinions from courts on what might be perceived as more petty issues and a kind of parental scolding of “Go work this out and come back to me if you can’t.” And in a bit of a weird way, I think that has a potential for it to be good for the parties and efficiency, because rather than going directly to the court, it brings the opportunity to find common ground and compromise.

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