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Crowell & Moring's Litigation Forecast 2019

Q&A with Javaria Neagle, Assistant General Counsel, Litigation and IP, United Airlines

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You’ve had some experience working with an outside vendor for technology assisted review (TAR). What lessons have you learned?
It is important to get your vendor and in-house teams on the same page. Your outside counsel, too. Educate every business partner, including your vendor, about the case objectives and the long-term litigation strategy. I spend time on case education from senior leadership to individual team members. We discuss what the case is and what everyone’s piece of the puzzle is. Getting all the parties on the same page leads to high-functioning teams who, in turn, understand their roles and communicate well with each other.

Does TAR have an impact on your internal processes?
One thing TAR sheds a light on is the need for corporations to have really robust record-retention policies. As these tools evolve and as they can process larger and larger swaths of data, it’s really important for companies to not only formulate their record-retention policies, but to abide by them. You need to have enforcement mechanisms in place to ensure that documents are destroyed pursuant to the record-retention policy— because ultimately TAR is designed to be a cost-savings tool, but it’s only going to be a cost-savings tool if you’re not accumulating mass amounts of unnecessary data in your company.

How is TAR affecting the way you work?
TAR means that there has to be a greater collaboration between myself and my outside counsel, in that we have to work very closely together and strategize at an early point about handling a complex case’s discovery. TAR has the good effect of enabling closer relationships between outside counsel and in-house counsel. On a personal level, it forces me as the in-house lawyer to understand my case better, because you have to think about both the strategy and the details of the case early on in order to take full advantage of TAR.

What would you tell other legal departments about selecting a TAR vendor?
While cost is important, you can’t lose sight of the forest for the trees. A short-term victory would be to go with the lowest bidder. But you really need to put substance over cost—especially with a particularly large case or one that’s going to have a significant impact on the company. If you can have both substance and lower cost, great. So, when choosing a vendor, you should ask them whether or not they’ve had a case as large as the one that you propose giving them. What was their biggest case in terms of document collection? How long did it take to complete the predictive coding process? What mistakes did they encounter from prior matters involving TAR? What assurances can they give that those mistakes won’t happen again? A budget is always going to be an important line item in your RFP, but I think the substantive questions are going to be equally if not more important than just cost.

Also, your vendors’ daily processing and production capacities are critical to meeting deadlines. We all know that litigation—especially at the level at which you would use a TAR vendor—can change at a moment’s notice. How quickly can the vendor scale up their staffing? What are their off-hour capabilities? All that should be part of the RFP process.

Any advice for legal departments considering the use of TAR?
Even though the topic of TAR has been around for several years, a lot of legal departments still aren’t using it, so it’s not too late. I would say most judges and litigators—both in-house and outside counsel—are still reluctant to embrace TAR. We’re still new to this journey. So this is the perfect time to get your hands dirty. My advice is to hire an excellent e-discovery manager to show you the ropes. I’ve learned a great deal from mine. Also, in-house counsel stands to learn a lot from their vendors and from project managers at vendors. In general, you should surround yourself with e-discovery and tech-savvy individuals who can teach you how to use the technology.


Index: Litigation Forecast 2019