Kirby Noonan Lance & Hoge LLP, a San Diego-based litigation boutique that has received a tier 1 ranking in commercial litigation in the 2015 edition of U.S. News & World Report’s "Best Law Firms”– a status achieved by less than 1 percent of law firms nationwide – has, for almost 40 years, provided its clients the high level of expertise that one would associate with large, national law firms, but with the personalized service – and reasonable fee structure – of a boutique practice.
“Our focus is on complex civil litigation,” says partner Jacob Slania. “We’ve represented plaintiffs and defendants in a wide variety of disputes, including class actions. We handle commercial disputes, antitrust and unfair competition actions, as well as real estate and construction litigation disputes. We also do a significant amount of professional liability defense work.”
Slania routinely handles complex litigation cases, whether it is an antitrust case in the U.S. District Court, Southern District of California, that included a six-week trial, or one of the numerous construction cases he has been involved in over the years. Many of those construction cases are complex because of the numerous parties and contractual relationships on the projects at issue. “Whether I’m representing a prime contractor on a federal project or a general contractor on a private project in a dispute with an owner or a lender, there will often be related issues with nonaligned sureties, subcontractors and suppliers. If you just looked at one of those disputes (e.g., contractor vs. supplier, or contractor vs. owner), you wouldn’t necessarily think the matter is complex. However, when you look at all the disputes relating to a single project in the aggregate, and at how they interlock and overlap, I think ‘complex’ is a fair description.”
When Slania is handling a matter that is likely to spawn related matters, discovery takes on greater significance, and in such cases, he often partners with Inventus LLC, a Chicago-based national discovery management firm serving law firms, corporate legal departments and government agencies. Its services span the full spectrum of electronic discovery, from collection through production. To reduce the costs (and risks) associated with complex matters, Inventus employs best-of-breed scalable technologies.[1]
Slania’s go-to guy at Inventus is Solutions Consultant Andrew Silberberg. “His group has provided us a tool that makes it much easier to segregate and manage discoverable information,” Slania said. “We used his services in a dispute between a prime contractor and a large subcontractor on a federal project located offshore. The lawsuit contained a broad range of disputed issues including performance by the subcontractor, scope of work that the subcontractor was to have performed, change orders and delay claims, the latter of which can be tricky when it is alleged that there are multiple or ‘concurrent’ delays, as was the case here. In such a situation, subcontractor X may claim that the prime contractor suffered no harm due to delay caused by X's performance because subcontractors Y and/or Z were also delaying the project, and therefore the prime contractor should not be permitted to back-charge subcontractor X."
“When I have a dispute like that,” Slania continued, “I want to get all the project documents –not just those related to that lawsuit – in a single, organized and dynamically updated database so that if my client later has a dispute with subcontractor Y or subcontractor Z, or with the owner (which would be a government entity on public projects), I can easily identify the relevant data or documents.”
Inventus’ tool that Slania refers to is inVerito, an early case assessment platform built directly into Relativity that allows clients to easily sort through and identify relevant information and get early insights into data before moving into full review.
Slania added that Inventus’ services are particularly helpful when the project location is in another state or a U.S. territory. In such a case, there’s no contest, from a cost and time perspective, between a well-managed digital conversion and upload process, with the data then segregated and stored for different durations, compared to the traditional process of printing and disseminating paper documents. Slania also notes that the rules of discovery may differ depending on where the documents are located and where the case is venued.
Slania recalled a complex litigation matter involving an $80 million commercial project that included separate lawsuits in the Central and Southern Districts of California, and 22 lawsuits, ultimately consolidated, in the San Diego County Superior Court. The federal courts’ initial disclosure rules required a type of production that the state court cases did not. Slania said he was in a quandary as to how to manage the data. How was he going to keep straight what was and wasn’t produced under the two sets of rules? Inventus’ indexing and search technology, he said, leaves Bates labeling and similar methods for sorting and sifting data in the dust in these types of scenarios.
Privilege and/or responsiveness reviews are undoubtedly a critical part of any document production. Whether made under state law or Rule 26 of the FRCP, a request to produce all of the documents that support a position, if left unchallenged, poses a grave risk to data privacy, not to mention the cost and burden of production. Faced with such a request, Slania said he gathers all data from the client’s server and loads it into Inventus’ document storage platform from which he will run a search for all attorney-client communications for review and redaction. Simultaneously, he will be using other search terms to limit production based on relevance, identifying the responsive documents and producing only those documents. Skip this step and the cost is going to be exorbitant, Slania says, adding that a data dump is not only costly but risks inadvertent disclosure of a privileged document or a reprimand from the court for burdening your adversary with an overbroad response.
Federal Rule of Evidence 502(b) allows the parties to enter into a stipulated protective order allowing for the clawback of privileged information that may have been produced. Inventus’ tools for managing data and information can be very helpful in making the case for such an order. Depending on the language of the protective order negotiated with the other side, a substantial amount of time may be saved in the privilege review process without risk of suffering an inadvertent waiver of privileges.
Inventus’ Silberberg adds that Jake’s decision, when handling multiple matters with overlapping elements for the same client, whether concurrently or successively, to store data and attorney work product in Inventus’ database, saves his client money on the cost of processing the data. “They just pay for it once and have it in what we call our Data Vault,” Silberberg says. “They're also saving on the attorney review time by allowing Jake to piggyback on ongoing cases and leverage work product for future cases. If a document is privileged, it's usually privileged across the other cases.”
This tool, M3, allows clients to easily repurpose such information. Instead of having to repeat review, they can apply attorney work product when it comes to privilege, redaction, search terms and other information, saving them time and money.
Adds Slania: “That also applies to the responsiveness review. While the scope of inquiry may differ from one case to another, if I get a request for the production of documents relevant to the installation of a concrete slab, the finish of the concrete slab, the slope of a concrete slab, the placement of the concrete forms, and the mix design of the concrete, and I’ve already run a search for those documents in a prior litigation, I can just say, ‘Use that search. Get the documents. We’ll produce them in response to these requests.’”
The scope of discovery has undergone tremendous change within the past 10 years, and many litigators expect it to undergo further tremendous change because of the way the rules are written and the case law has been applied. “We’re dealing with rules that were written for document discovery and we're trying to apply them to electronic discovery,” Slania explains.
Discovery rules were written before “information overload” and the “communication explosion”; before the proliferation of emails, text messages and instant messages; before email exchanges stretching 10 or 15 pages, bloated by multiple replies and forwards and bulging with attachments. “There is so much more information that is now available,” says Slania, “and the cost of dealing with it is becoming unsustainable. Inventus has developed the tools to help make litigation manageable,” in regard to both locating evidence and cost.
Beyond technology, Slania appreciates the personal touch that Inventus brings to the relationship. “By having dedicated personnel at the ready to track a project for me, they are able to respond to my most urgent requests. I call Andrew and say, ‘Hey, I've got a case for you.’ He tells me who my project manager will be and – boom! – that person is locked onto my case; my go-to resource. In some cases, my assigned representative has become so knowledgeable about the issues that when a related case arises, I will involve him or her in developing a plan for navigating, identifying and producing the relevant data."
Having that assistance at the outset of a case or dispute saves my client money, in contrast to what traditionally occurred, where associates and paralegals would go sit in the backroom of a client's office and go through hundreds of bankers boxes trying to find the right file.
The assigned Inventus project manager is hand-picked by Andrew from his team, which includes 50 project managers, about 80 percent of whom have passed the bar, including some former practicing attorneys. “They understand where Jake is coming from,” Silberberg says, “and they also have the legal expertise to provide valuable behind-the-scenes advice.”
Not only are the days of sifting through documents a thing of the past, but so are traditional search techniques. So while the digital information revolution has resulted in more discoverable data to wade through, there's also advanced technology available to help reduce the data footprint, thereby significantly lowering processing costs.
“I look at value in two different ways,” Slania says. “One is saving me time; the other is saving the client money. Inventus allows us to do both. Putting a little bit of effort in at the front end – working with Inventus’ project managers to identify and segregate relevant data – simplifies and speeds up the process of identifying the key documents, which saves the client money."
More nuanced search technology can also help in making your case. "If I tell my Inventus project manager ‘Here are all the terms that touch on the issues in the dispute,’ I can then go through that subset of documents to find the most helpful ones, which could be something as small as an item on a meeting agenda to counter an assertion of lack of notice,” Slania says. “In other words, whatever the issue, I don’t have to spend as much time extracting a subset of data to analyze.”
“These subsets of documents can also be extremely helpful,” Slania adds, “in preparing to take the depositions of persons most knowledgeable or in working with an expert to defend the efficiency of the construction sequence in response to an owner’s claim of undue delay. In both instances, Inventus has not only helped me build a stronger case, but do so in a less costly way, which my clients appreciate.”
[1] Specialties include data mapping, litigation preparedness and best practices, legal hold, e-discovery, forensics (acquisition and investigation), early case assessment, data culling, analytics (concept searching, clustering, threading, near duplicate identification, predictive coding), hosting, imaging and reprographics, and managed review.
Published September 7, 2015.
