eDiscovery Leaders Live: Joseph Tate of Cozen O’Connor

Intro

Each week on eDiscovery Leaders Live, I chat with a leader in eDiscovery or related areas. Our guest on May 14 was Joseph Tate, chair of the eDiscovery and Practice Advisory Services Group (ePAS) at Cozen O’Connor.

Joe and I started with a review of his career – how he got started in eDiscovery and what brought him to where he is today, from paper to linear review to the complex systems we use now. Joe emphasized the importance of mastering the facts with eDiscovery. He talked about the value of using artificial intelligence to review data from disparate sources. He went into the need to build a story from the data, rarely with the benefit of a smoking gun but more likely by rolling up his sleeves, getting involved in the data, and digging in. He had an emphatic response to my question of whether conducting eDiscovery constitutes the practice of law. Finally, Joe closed by imploring all of us who practice in this area to embrace a continuous state of learning.

Recorded live on May 14, 2021 | Transcription below

Note: This content has been edited and condensed for clarity.

George Socha:

Welcome to eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. I am George Socha, Senior Vice President of Brand Awareness at Reveal. Each Friday morning at 11 am Eastern, I host an episode of eDiscovery Leaders Live, where I get the chance to chat with luminaries in eDiscovery and related areas. Past episodes are available on the Reveal website; go to “revealdata.com”, select “Resources”, then select “eDiscovery Leaders Live”.

My guest this week is Joseph Tate of Cozen O'Connor. Joe chairs the firm's eDiscovery and Practice Advisory Services Group (ePAS), or if I got the pronunciation wrong, Joe will get me right on that. He focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations.

Joe leads the firm’s eDiscovery efforts and is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Joe manages complex eDiscovery projects for high profile matters involving various practice areas and industries including higher education, financial services, construction, health care, and life sciences.

He's well versed in developing and implementing data mapping exercises, litigation hold and preservation plans, and organizing forensic data collections. He also prepares and manages document review workflows using advanced technologies to cull and filter data sets, uses advanced analytics to increase review efficiency and implements quality control procedures to mitigate risk.

Joe has extensive experience leading the eDiscovery element of meet and confer conferences, preparing and negotiating ESI protocols, drafting and responding to discovery motions and requests, and taking and defending depositions of IT personnel and records managers. He also regularly counsels clients and colleagues on complex legal issues related to eDiscovery, the attorney client privilege and work product doctrine, information governance, and litigation readiness.

If that weren't enough, Joe is also a member of leading eDiscovery and information management organizations such as the Sedona Conference Working Group 1, ILTA, and ARMA. Joe also volunteers and provides pro bono legal services through Philadelphia VIP, Community Legal Services and as a volunteer child advocate attorney with the Support Center for Child Advocates. He received his undergraduate degree from Boston University and his Law degree from Villanova University School of Law. Welcome, Joe.

Joseph Tate:

Thank you George. Thank you George. I appreciate the introduction.

The Transition from Paper to Electronic

George Socha:

And there was a reason for the long introduction because we are going to be getting into more than a little bit of that. That was a lengthy list, it’s a lot of activity, there's a lot of expertise developed over time to get you there. But tell me, how did you get there? Where did you start?

Joseph Tate:

Well George, it kind of scares me to say this sometimes but I've been practicing law for just over 25 years now, and I think I'm in denial about that but it is a fact. It really started with my very first assignment out of law school. I was handed a plane ticket and told, “You're going to review our client’s hard copy documents for the next 6 months”. That was at a time, mid-nineties, really when corporations and the clients that the firm I was at at the time were representing were transitioning from the paper world to electronic and ESI, whether it's email or server data.

I spent the first couple months as a lawyer, sitting in a large room with tables and signing out bankers boxes full of documents and literally coding documents by hand and attaching green for responsive, I think we used pink for privilege.

That was my introduction into large scale discovery and document review in particular. And I'd say 7-8 months into that process, a number of us were brought to a conference room, one of those kind of “price is right” moments, “The curtain is revealed!” And they said, “All of those boxes of documents have now been digitized and put into a database”. And you know, it was likely one of the first, if not the first databases that we, as the eDiscovery professionals, used to review and code documents. So that was my introduction.

George Socha:

A little context there, in terms of scope. How many boxes of documents were you dealing with at that point?

Joseph Tate:

Well it seemed like a never ending flow, frankly. To give you a picture, it was a very sparsely, if at all decorated, office floor in downtown Kansas City, Missouri, and it was a big room with boxes basically stacked floor to ceiling. Hundreds is probably a fair estimation. And again, the flow never seemed to end.

George Socha:

And these were your client’s documents, right?

Joseph Tate:

They were. Yeah.

George Socha:

So hopefully, at least you weren't being put in a room that either had way too much air conditioning or way too much heating, not nearly enough light, no electricity, things like that?

Joseph Tate:

Well, I will say that after that, I have, and probably you have too, did spend time in warehouses that were not climate controlled. So, this was actually in hindsight, not too bad. But I definitely have experience in North Jersey in particular sitting in a warehouse with a coat on and gloves trying to review documents. That’s how we did it back then.

George Socha:

And to help those who pine for the good old days they never actually experienced, my guess is that, at least a few of these boxes had more than a bit of dust, grime, and perhaps grease or oil on the top and you might never quite know for sure what you were going to find when you opened up a box?

Joseph Tate:

That's a fair assumption, George. We used to come up with some workarounds, we used to tape our fingers up so we didn't get paper cuts. Yeah, not the joys of the technology that we get to use today.

The Beginning: Linear Review

George Socha:

So they took you aside. You'd been surrounded by these thousands of boxes, millions of opportunities for paper cuts, and instead got put into a room with a computer terminal? Something on the screen? What did it look like?

Joseph Tate:

Well, it didn't look a lot like what we have today. The user interface was very basic. Primarily the metadata was, as we used to say, “bibliographic coded entries”, very rudimentary. But at the end of the day we were able to code the documents appropriately. I think the nicest thing was we weren’t getting on a plane every week, so that we could do it from our offices in Philadelphia. At the time there were a number of national council firms involved, so we’d all spent a lot of time together so we got to go back to our respective offices.

At the time it was pretty advanced, at least going from that paper review world to an electronic format, but nothing like what we all have at our fingertips today.

George Socha:

Right. So you would have had the ability, I assume, to search for objective information, dates of documents, names of authors, perhaps things like that. Could you search the text of the documents at that point?

Joseph Tate:

Eventually. But early on, no. I mean it was still what we would call a “linear review”. Almost the equivalent of the hard copy review, but at least in a digital format at that point.

George Socha:

And that system that you got placed in front of, was it advanced enough so that you could not just search the documents, but actually pull up images of documents on the screen, or did you have to go somewhere else to find the documents themselves?

Joseph Tate:

It did have images, so that was a benefit. Yes. It was a treat.

George Socha:

And I'm curious, did you have people almost immediately complain that it took too long for them to see the image?

Joseph Tate:

We never hear that today, right? Well, I think we were all so enamored with the technology that there frankly weren’t many complaints. We were just happy that we were not handling paper anymore.

Mastering the Facts with eDiscovery

George Socha:

But those were not the end times. Things changed from there. What happened next?

Joseph Tate:

Well, from a personal standpoint as I went through the associate ranks, I moved a little bit away from the review world into more working on collections, custodial interviews, at one point I was on a joint defense privilege committee. So, a little bit more substantive work; packaging of the documents, if you will, for deposition prep. And then interestingly, moved for a couple years where eDiscovery wasn't my primary focus, frankly. More of the traditional litigation associate role of taking depositions. But I found over time I just kept getting more calls and emails at that point from colleagues who were saying, “Hey, you’ve handled this eDiscovery stuff before, haven’t you?” And I was slowly, even maybe not so slowly, dragged back into eDiscovery all of the time. And about 10 years into my career, I made a very conscious decision that this was the area of law that I was going to focus on and have done so over the past 15 or so years.

George Socha:

When you were engaged in the more traditional litigation work, taking dep and defending depositions for example, how much did your experience on the eDiscovery side help inform and improve what you were doing in the depositions, if at all?

Joseph Tate:

It 100 percent did. And I think, fundamentally litigation is the application of a certain set of facts to the law. And what being involved in discovery at that level did to me, was show me that whoever masters the facts the best is going to be the best prepared in a given piece of litigation. For years, I managed and trained large review teams and I used to say to them, “ You don't see document review on TV and we didn't go to law school to say we want to review documents, but the lawyers and other paralegals, if you will, or whoever was involved in that, you’re on the front lines and you are invaluable to a case team or an investigative team if you can manage the facts.”

So what it did was teach me the importance of really mastering that part of the case. Without facts in your favor, you're not going to win and you better strategically start thinking of a way to resolve this matter.

Using AI to Review Data from Disparate Sources

George Socha:

When you moved from paper to electronic, you were doing a largely linear workflow. You're probably not doing so much a linear workflow today, but my question goes to the linear part of it. How effective an approach was or for that matter is a linear review when what you're trying to do is find out what happened in the case and build the story you need to tell?

Joseph Tate:

And you’re absolutely right, we do not do the types of linear reviews that we did in the past. That's one of the most exciting things about what we get to do in the eDiscovery space. It’s one thing if your dataset is not that large and you need to focus on a witness and you might want to get everything sorted by... this is after you do a first pass review and you might tag documents for a particular witness. Well then maybe it does make some sense to embark at least on that smaller part of a linear review. But given the volumes of data that we deal with, and frankly the disparate data sources….

One of the biggest challenges is that email is not the only form of communication from a corporate level. So taking these various communications, files if you will, and meshing them all together is a challenge. And now we have at our fingertips the tools, whether it's…. AI is a term I think is difficult to define, and it means different things to different people. But for those of us who leverage AI or machine learning in the discovery space, it’s been invaluable. To get through five million documents in a linear review can cost millions and millions of dollars and take years, frankly. And those days are over, those days are over.

And so we can quickly get into the data. And this goes to the workflows that we’ve set up over the past couple years of, whether you call it Early Case Assessment, really digging in and seeing the types of concepts, or the themes. I’m amazed, I had a call even just this week with a provider in the UK who has a fantastic application. And what the tools can do now, as far as recognizing opinions and various themes within language, it’s tremendous.

George Socha:

You said linear review isn’t so effective anymore, there are other approaches. Can you tell us a little bit about the approaches you find most effective these days?

Joseph Tate:

Well, there's been a lot of discussion over the past couple of years where people said, search terms are dead. I'm not of that opinion. I think that search terms can serve a very useful purpose in an initial cull, but we all know they're imperfect. So whether we're leveraging, and different providers call their applications different things, but at the end of the day what I recommend to our case teams is getting folks involved who understand the technologies, who understand the application, and instead of this desire to just jump in and run some search terms and start reviewing the documents, let's have a moment to pause. Let's think through, what are the issues? And then running the data through the various tools. And certain tools are better than others for a given case, whenever the data may be. Maybe you're focusing more on mobile data or other different types of data. So you need to have at your fingertips, the availability of different tools that will serve you better. But really, digging into that data and seeing what the tool is surfacing for you, which then will guide you in the ultimate review workflow.

Building a Story from the Data

George Socha:

Before concentrating my focus exclusively on eDiscovery, I spent 16 years as a practicing lawyer litigating cases all the way from initial complaint through final appeal. In all those years, I encountered really one case with a smoking gun. Everything else was an accretion of details. I continue to hear people talk about how you can do this to find the smoking gun, do that to find the smoking gun. From my perspective it was about building up layer after layer after layer of detail until you were able to put a story together. What's your experience been with all of this and what approaches and tools help you whichever way you're dealing with it?

Joseph Tate:

Well I have found a smoking gun on more than one occasion. But you're exactly right, it is about building a story. It's about taking the facts, and as we see today the facts are everywhere. They're in all sorts of disparate data sources. A recent example, we were involved in an investigation and person A sends an email at a certain time. Well, did they also send a text at a contemporaneous time? And then do we also need to look at their call logs to see what they were doing at that time? And that's exactly the point of building the story, building the narrative. What are the facts telling you? And you’re right, over my career, maybe a handful of smoking guns, but it really is about the narrative, about telling the story. Either to win your case or to inform you that maybe you have some weaknesses in your case.

I really love rolling up my sleeves and getting involved in the data and digging in. It's unfortunate that I don't get to do it as much as I would like anymore, I seem to manage more people doing it. But that's such, to me, really an exciting part of what we do: What is the data telling you? What are the documents saying? Does it contradict what your client has told you? The allegations in a complaint, are they truly supported by the facts?

Which also goes not to a forgotten piece, but the challenges of reviewing inbound productions. It's much easier when you have the native data, you process it, it gets into your tools. But then making sure that when you're negotiating with the other side, you're getting the data in a format that's going to allow you to leverage those same tools on the documents you receive from the other side. But I agree 100%, it's more the story than the smoking gun.

eDiscovery: The Practice of Law?

George Socha:

There is a persistent perception that what we do in the eDiscovery trenches, whatever it is, it's not the practice of law. We don't get to hold ourselves out, for the most part, as eDiscovery specialists, the way we can hold ourselves out as, say, trial specialists. What do you think about that perception?

Joseph Tate:

Well, I'm obviously very biased. I absolutely 100% believe it's the practice of law. So there's the collection, the processing, the production of data, and people see that as a commodity, almost. And there's data charges around it. But I regularly meet with my team and I manage lawyers and I manage non lawyers, project managers and technologists, we call them. And periodically throughout the year, I'll do a refresher in eDiscovery 101, and it's this recurring PowerPoint I have, it's why we do what we do. Everything we do, especially in litigation, is dictated by the rules of civil procedure and the rules of evidence: the law.

When I'm counseling a colleague about production format, no, you don't want to enter a joint stipulation to convert 10,000 emails to PDF, because how are you going to authenticate that at trial? How are you going to use it as an exhibit at a deposition? So, obviously the rules of evidence or law, we need to make sure that as we collect, process, and produce data, we're laying the runway, if you will, because that's a piece of evidence that ultimately needs to be authenticated, and potentially used as an exhibit in trial. And if you can't authenticate that, if you haven't followed all the requisite steps, that motion in limine gets filed and you’re in trouble.

And the same thing with the rules of civil procedure, that's what we do. When I get calls from colleagues, and this is not unique to my firm, the first two questions I ask are, what jurisdiction are you in and what's the amount in controversy? And then I say, "All right. Well, you're in the Northern District of California. Let's see what the particular judge does.” All governed by the law. And then we want to know if you have $5 million at stake versus 500 million, that's going to color the way we might approach things from a proportionality standpoint.

Addressing Data Volumes More Efficiently

George Socha:

You mentioned earlier in the discussion, and I think I've got the tense correct, that you used to manage large teams of reviewers. Are there still large teams of reviewers out there in your organization and someone else is managing them? Do you have a better way of doing things? What's happening these days?

Joseph Tate:

This is going back 10 years where we didn't have the types of applications that we do today. And it was as we were talking about more of a linear review. At the time, I recall quite clearly having multiple teams of 50+ contract attorney review teams pouring through documents.

Today we just don't need to do that. I can get through the same volumes with less people and less time. Which is why it's incumbent upon us, and this is what I say to the folks on my team, is you need to be fluid and up to speed in the latest technological tools that are out there. Because they have changed and are evolving all the time. That's what I find so exciting about what we do. I can recall where email threading was not a thing. I can recall where we’d collect mobile data and we’d pour through UFED reports, basically in Excel format. We don't do that anymore.

I remember having teams literally reviewing about 900,000 text messages. And this was before we had the types of tools and it wasn't that long ago. And now, the way we can ingest it and review it, it's just so much more efficient than it was. So, are those days over? No, I think there's still second request work in particular that's going to require a lot of reviewers. But personally, and the way we do it, we just don't have those types of teams anymore, we don't see the need because we can quickly address those volumes much more efficiently.

Embracing a Continuous State of Learning

George Socha:

At the beginning of this discussion before you came on, I went through a lengthy description of the various areas you work in, the skills you've developed, the expertise you now can bring to bear. My guess is that you have people coming to you, at least from time to time, asking some version of, "How can I be you? How can I get to where you are?" What's your advice for those people?

Joseph Tate:

Well, I don't think this is unique to what we do, but any professional job, you just have to be passionate about it. Find that subject matter that really gets you up in the morning. I’m a bit of a tech wonk. Although a lot of my colleagues over the years come from more of a programming or an IT related background, I don't. But I love technology. And frankly, I love being a lawyer. And I think there's really no shortcuts, it requires time.

And so for me, every morning I get up and probably have anywhere from eight to 10 emails from eDiscovery blogs or case law updates. Pre-pandemic when I rode the train I would flip through those. And that's something that you have to do every single day in our space. Because everything is changing. And it's not just the technology that we get to use in our sandbox, the toys that we get to play with, but educating yourself on what the clients are using from a technology standpoint.

There’s been a lot of discussion about Slack. If I'm going to advise a client on best practices around Slack, well I've got to know it. And that's time I have to carve out to teach myself about it. So it's this continuous state of learning. And when you're passionate about it, it's fun.

George Socha:

So from what I'm hearing, to use an analogy, we're not talking, to develop and maintain these skills, about a sprint or a relay. This is at least a marathon, if not an ultra marathon, no?

Joseph Tate:

And I'm a runner, so I think that actually works very well. Your times are not going to drop in a marathon unless you're putting in the time. And that's really what it is. I think what I find most challenging is, or not challenging but interesting that keeps me going, is that every individual matter we handle poses a different challenge. We all kind of have our playbook, which was the EDRM, which was the greatest thing that came about, here's a visualization of what to do, but there's so many nuances to everything.

Just in the past week, collecting from Slack. What are we doing with JSON files? And then on the flip side, just two days ago a colleague called me and said, "The client uses Lotus Notes, NSF files." And I said, “Oh jeez, that's an old one for me.” But fortunately, I handled a case eight to 10 years ago and so I could pull that out of the hat and say, well this is what we need to do. People ask me, what is Lotus Notes? Is it email? Well, kind of.

So again, it's having to understand technology and just having that enthusiasm to learn about it all the time. And keeping your hand up, that's what I say to folks on my team. Always keep your hand up. Someone asks a question, raise your hand, you will figure out the answer. And that's one of the benefits of a legal training, in my mind, is we will find the answer. It might take a little while, but we will get it.

George Socha:

Well, thank you very much Joe for joining us today. Joe Tate is chair of the eDiscovery and Practice Advisory Services Group and what's the proper pronunciation of the acronym?

Joseph Tate:

It's ePAS.

George Socha:

Joe is the chair of the ePAS group at Cozen O'Connor. I am George Socha, this has been eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. Thank you all for joining us today and please join us again next Friday, May 21, When our guest will be Ricky Brooman of Saul Ewing. Joe, Thank you very much.

Joseph Tate:

Thank you George, my pleasure.