Name: Connecting the Dots with Written Discovery
Uploaded: 2026-02-18T22:16:06.893Z
Duration: 1 h 1 min 4 s
Description: Connecting the Dots with Written Discovery

Transcript for "Connecting the Dots with Written Discovery": Hello. Hello, everyone. Welcome so much. Appreciate you all being here. Today, we've got a really exciting topic with some amazing speakers, and I'm really excited to share with you all. Before we get started, I wanna give you a quick heads up. I'm Jacqueline. I'm a marketer here at Reveal. It helps put on webinars like these. Today's session is being recorded, and it is gonna be available on demand. So as you want to come back and watch us and get the best tidbits, you can come back to the same link that you signed up through in order to access it again. They will also you're able to this is a live session, which means that you guys can ask questions throughout the session. To make sure that Josh is able to see and all of our speakers is able to see your questions, make sure you ask those in the q and a tab on your screen. And finally, there will be a survey at the end. This helps us and get a little bit more information from you and so that we can continue making webinars like this possible. You'll also notice a couple of polls happened throughout today's session. Feel free to engage with those. I know our speakers have been really excited to kinda put something together and to hear from you throughout the session. Feel free to engage with each other in chat. But without further ado, I'm gonna pass this off to Josh to get us started. Thank you, Jacqueline, and thank you everyone for joining us today. Today's webinar is brought to you by the letter m because our panelists include Jessica Miederson, Kathleen McConnell, and Mindy Morton. All friends for years, all fantastic litigators, and we're gonna have a rip roaring good time talking about the backbone of civil litigation, written discovery. Now I would like each of our our guests to introduce themselves, and we'll we'll have some tidbits and poll questions to follow. But, Jess, can you kick us off and tell us a little bit about your firm and your practice? Sure. So my name is Jessica Peterson. I practice with a Wisconsin firm, Stafford Rosenbaum. I've actually only been here a few years. I started my practice nearly a quarter century ago, which is insane, in Texas, actually, in Austin. Worked for two big firms there before moving back to my beloved Midwest about 1314 oh, wow. Fifteen years ago this year. Holy fudge. Time flies. So I was with the litigation boutique for several years, and then I joined Stafford. We do everything besides, I guess, like, criminal law. And my practice is focused and always has been focused on business litigation, which can be anything from securities, breach of contract, DNO kind of issues, some patent litigation, which is where a lot of this discovery stuff gets the most heated. And now I do a lot of construction litigation. Thank you, Jess. Kathleen? My name is Kathleen McConnell. I'm with CyFar Shaw in our San Francisco office. I co lead both our data privacy and our data science practices here at the firm. I've been working in the e discovery space for a long time, kind of how I got my background that rolled into these other data related areas. Obviously, our firm does a lot of labor and employment litigation, but we are a full service firm. So we have a extensive litigation team as well as all your other standard practice groups and, obviously, fantastic data privacy groups. So excited to be here with everybody today. Thank you. Mindy. Hi everybody. I'm Mindy Morton. I'm a partner with Procopio based in Palo Alto. I've been practicing for twenty eight years, and I primarily do IP litigation, business litigation. I do a lot of Internet and data privacy cases, especially all those fun CEPA cases that everybody's talking about nonstop these days. I chair the ABA Trade Secrets Committee, and I do a lot of work with Sedona Trade Secrets Conference. And I've also done some articles on actually TAR back when that's what we actually called it, technology assisted review and e discovery. So I can't say that fighting with the Posting Council over discovery disputes is my favorite thing, but I'm hopeful that through this seminar we can help you avoid those fights. Thank you. And judges still use TAR, and I saw one yesterday where they used CART. So it's like, oh, wow. Been a while since I've seen that an acronym. But, Okay. yeah, it's, you know, it's not gone. Might be hibernating. But ediscovery is how Jessica and I met, and it's actually how we all met. But Jessica and I met over a blog post I wrote about judge Fossiola, and I just post posted that in chat. But that kicked off a discussion that included Mel Brooks movies. And that discussion led us to found the legal geeks, and we've been doing, you know, appearances at San Diego Comic Con and WonderCon, for over ten years now. In that spirit, I have a poll question for all of you. What is your favorite Mel Brooks movie? The man's 99. He's done a lot of work. But while we put up that poll and we just picked some of my favorites, so you can see, you know, what what we have. But, again, the ones that I put, you know, this this top five of blazing saddles, young Frankenstein, silent movies, space balls, and high anxiety, go ahead and because I'm curious to see which way you people go. But, again, it's a little fun. No high anxiety. You know, there's classic lines in there. Silent movie, classic love letter to silent films. Young Frankenstein, which is my favorite because it's it's a love letter to James Whelan and and the early nineteen thirties Frankenstein films, and, of course, Blazing Saddles because we've met over at Cowboy Post. So, again, lots of let's not forget baseballs because come on. Dark hair. Dark helmet. Come on. of my friends one I picked. one of my friends has that full cosplay. Like, he made the Darth helmet. He's he's worn at Comic Con. I've seen it in the shop. It's very impressive. And so the the poll has been this is one of the first times we've done a poll, so I'm curious to see what what's going to be in the lead. But as people are voting, we'll get into the meat and potatoes of today, and that is the five key questions that we have in every lawsuit. Well, technically six. But the why is the one that doesn't always get asked immediately. But it's who, what, when, where, why, and how. Those are the key questions. And civil discovery is how we get to them, And the tools to do that is written discovery. Now we're all familiar with requests for production. That's what ediscovery, products are made for. And, you know, they're defined in the federal rules of civil procedure states. I think virtually all, if not all states, have some form of it, whether or not they've just copied the federal rules over to theirs, to their state. But, again, those are fun, fun things that that we do in drafted requests. Coupled with that are special interrogatories. Rogs often mirror RFPs, and their strategy is on doing them both together. So my question for our guests, and we'll start with with Mindy, and work the other direction, is how do you approach res drafting? Because, again, there's a difference between drafting and responding. But in drafting frogs, what's your preference? I mean, I I usually honestly, I usually draft the request for production first, and then I turn to the ROGs, and and I use the the RFPs to kind of inform and remind me about what the things I specifically want information or what I may not get the information I need from just looking at documents. Although I'm sure we'll get into this, but sometimes I just get a list of documents in response to my ROGs. And I also often will go, if it's a jury cause of action or causes of action, I will go and look at the jury instructions and use those to inform my ROG drafting. And I would say something new that I have just started doing is we are now using some of the fun AI litigation tools. I am primarily using co counsel right now, but I know there's a lot out there and they do similar things. And I have asked it, hey, can you help me draft some ROGs and this is the cause of action? And sometimes I get things that aren't helpful, but occasionally I get some very helpful things that I hadn't thought of. So it's another tool kind of in the toolbox. Kathleen, do you do these at the same time? Do you separate them? What's your preference? I tend to do them a little bit staggered, but also similar to Mindy, of starting with the RFPs because I feel like the documents are often really foundational to what you're gonna find, you know, what you're gonna ask about, what you're gonna discover, all the other questions. And kind of similar to what Samantha and Andy touched on with the jury instructions, one of the things that when I was a baby lawyer, a mid level lawyer taught me how to do is at the outset of the case, one of the very first things she did was go through all the jury instructions and put together a chart with all of the elements of all the things that we were going to have to prove. And that existed for her for every case she worked on from the outset all the way through trial or settlement or wherever we got to. And I think that's one of the most helpful tidbits, practice pointers that I you know, from a litigation perspective that I've ever received. Because it really helps you from the outset keep you thinking in mind, like, keeping in mind, like, do we have all the pieces that we need in order to prove up this case? Because, otherwise, I think it's easy to get caught up in some of the details and not realize that you're missing, like, a key component. So, again, you know, usually start with RFPs. It might throw in a few, like, very targeted other requests at the same time, but usually stagger a little bit. Jess, how about you? Yeah. I'm like, I love hearing about what other attorneys do. I tend to focus more on topics. Right? I start listing out, like, all the things that I wanna get answers on. You know, as let's say, I'm I'm frequently in the defense standpoint, like, you know, different allegations that they're making in the complaint, stuff like that. And then because normally, you know, you've got limits on the ROGs, but usually not on the RFPs and then RFAs, you may or may not have limits. I will start then kind of figuring out, okay. What are the things that I really need to ask in a ROG? Like, that documents aren't going to get me. And so I focus on that, and then I use the RFPs because usually those are, at least in my experience, unlimited. I can start putting more things into, the RFPs. But, you know, for me, my whole goal is just I try never to use up all my drugs and or RFAs right away. But I do focus more on a kind of a topic. And then for you, and I start drafting questions, then I'm like, oh, actually, I can make this a document request instead. So, yeah, I do it little bit differently. That does sound creative and a good way to approach it. You know, I was, you know, on the vendor side for a long time and then went to a firm for nearly six years. And I broke the habit because I I was very document focused. And then it was like, oh, we should draft the ROGs at the same time. Like, I would have both up and since there's gonna be plug and play between both of them. But the RFAs is kind of a forgotten tool. A lot of eDiscovery professionals don't think about it, and there's some really smart benefits to it. But for the audience, now, again, audience participation time, we have a poll for you. How do you approach your ROGs and your RFPs? Do you do them to have similar subject matter that are related, or is it kind of a free for all? Are you just using the jury instructions, or are you using the, you know, the allegations in your complaint? Like, there are multiple ways that you can attack this. But, again, like, share with us in chat or on the poll response. Like, you know, do you conceptually link these, for for drafting? And, yes. do we wanna maybe give a very, very quick foundational explanation of what RFAs, RFPs, and interrogatories are for some of our newer practitioners? That is a great point. So for those who haven't experienced the joy of RFAs, there's a slide. So so the the, rule 36, federal civil procedure, check your state for what they have. In federal court, you can have an RFA that goes for, like, truth or an opinion, and it's, you know, being able to ask them something, you know, deny this or admit it. Or you could do a separate one and ask for authenticity of documents. And, like, that should do them separate, and you attach, like, as an exhibit, you know, a, the email that you want them to admit or the contract that you want them to admit. And that way, you know, you can you can get those. States vary, but, like, generally, the authenticity of documents is unlimited, and you can have some fun with those. Like, I I had a party that was trying to avoid eDiscovery, trying to avoid collecting documents. So, I got a little hot under the collar and drafted RFAs that were admit that you did not collect documents, like that kind of of a approach to make them tap dance in a deposition. And before serving them, they they realized, oh, we actually do have to collect email, and we started getting, like, you know, 4,000 messages, you know, being produced to us as opposed to a 150 pages of scanned, you know, records that they said was everything they had. So there there are fun ways that you can use an RFA to make someone tap dance. Again, RFPs, you know, if you're in federal court, you know, you have options for how to do those. Fun fact, in federal court, those don't get a verification, but they do get your rule 26 g certification by the attorney's signature about the objections and everything. Rogs are different. You do need a verification in federal court and state court, and, you also have to object with specificity. So, hopefully, everyone's familiar with those. But, if you're new and you haven't had the chance to do this because you're trapped in the world of document review, there are options for you on how you draft these. And the special, we don't call them special. I think that must be a California thing. Right? Like, in Texas and Wisconsin and I think in federal, I just obviously interrogatory, not special. Yeah, we do it California. We have these fun interrogatories called form interrogatories. And think, and Josh will probably know more of the history than I do, but they're created to kind of help with smaller cases like personal injury and some other cases, but you can't object to them as being burdensome or anything like that because they're official California state court form questions. And one of them is I believe it's 17.1, if my memory is correct, that for every request for admission that you have denied, you have to, there it is up on the screen, you have to state all the facts in which you base your denial. And so if there were a lot of denials or there are lot of RFAs, that can be a lot of work. There's also a 15.1 I believe that you have to explain all the facts about your affirmative defenses. So these. formant debargers can be extremely burdensome. Man, yeah, Yeah. that is. They are wild. Aspect you know, I worked on a case where we got, we were the defense, and we got them, like, two days after answering. Like and it's like we literally just denied everything. Like so jumping through all the hoops was a a challenge. But it answers some, like, complex document review questions as well. Like, how do you prove, like, your denial? And we'll talk a little bit more about that, and we'll have a follow-up webinar on document review itself, where we'll get into that with more, detail. But, again, it's a wild one, and other states don't necessarily have these. But, theoretically, you know, you could do a contention, like, if you're not familiar with that term, you know, it's an interrogatory where you say, like, you know, state all the facts that support, you know, paragraph 17 of your complaint. And they have to go through and identify the documents that that support that, depending on how you draft it. So, again, there are fun ways to, make life really exciting for people, with those. In your say one thing related to that? Oh, absolutely. sorry. Sorry, Josh. This is all complete chaos. Obviously, too, I will say, like, local rules depending on where you are, especially, like, in Wisconsin, there's very little on the state rules. So it's very much court specific, which I've had. That's still an adjustment for me. But, obviously, local rules can impact this. But I always like to give a shout out to the Eastern District Of Texas. They actually do have basically, like for patent cases only, they actually have initial disclosures. That's little bit closer to what you're talking about in California. Like, basically, if you wanna file a patent lawsuit or defend a patent lawsuit in the Eastern District, there's an immediate burden on you to disclose a whole lot of stuff. So that way, there isn't that heavy lift by the party, like or basically a party, you know, saying, well, you didn't ask me for that stuff so I don't have to produce it. So it is kind of interesting. Some of these courts or jurisdictions like California that basically are like, okay, people. We know you're gonna need to do this in every single case, so we're not even gonna make a lawyer, like, draft them. Like, there's a default that you have to do, which I think is interesting. Well, in, you know, federal court, we have initial disclosures. Like, not every state has that version of, you know, doing an inter initial disclosure. So, like, that that is another difference, that that appears. So, Kathleen, do you use RFAs? And if so, do you go for admissions of fact or genuineness of documents or some split? What's your preference? It really depends on the case. Right? Like, whether it calls for that. Sometimes, you know, we'll we can get around the RFA if we're gonna be stipulating to whether certain documents are genuine or not. So we don't always necessarily need to go that route with the RFAs. I would say, you know, in general, I think they're probably the least used tool from my perspective. Parties are very crafty with how they answer them, so they're not always all that helpful in terms of response. And I forget whether you asked if I use RFAs and or something else, but I think I've answered the RFA part of the question, but I'm not sure if I hit the other part. The form of the RFA. Are you going for admissions of fact, or are you going for genuineness of documents? Yeah. Honestly, probably more with documents if we're not in a situation where we're gonna, you know, avoid that by stipulating or or such because I do feel like a lot of times parties are are crafty enough with the the responses that they're not always that helpful with the facts. But sometimes they can be. And sometimes, you know, you can throw the throw those out and kinda see what sticks, and you sometimes get helpful things back, especially if your opposing counsel is maybe not as on the ball as they would like to be. Mindy, have you had fun using RFAs and, you know, when like, those responses in depositions? Yes, I have. In fact, the very first jury trial that I was first chair in, and coincidentally also the very first deposition that I was first chair in, it involved interference with contract and that there were some relevant statements that were made and we had asked an RFA about it, and then we asked it again in the deposition, and we actually were able to use those two together to get a non suit, of course, following all the work that we did in the trial. They can be extremely valuable, but you need to very carefully phrase them. So audience participation time, we have a poll question about do you use requests for admissions for, you know, admissions of fact or genuineness of documents? And I realized I did that as an or. So it's again, use the one you use the most. So if you're doing more, you know, genuineness of document documents, go for it. You know, again but, again, there's no wrong answer. It's like, this is what you do. This is what you experience day in, day out. And, curious to see the results from that. Wait. Can I chime in, Josh, on how I use them? Yeah. Absolutely, Jess. I just say, first of all, like, jury instruction, I do not do that in every single case, but that is the best advice is if there are jury instructions, those should be there from day one. So I try to do that, but I don't always do that. RFAs, I agree. Attorneys can be tricky. So 90% of the time and I know attorneys are just like, when I was a young attorney, it's like, we just deny them. We don't care. But what I've actually found them to be helpful is later on in the written discovery process, sometimes even after some depots have been done. One, to just see, like, are we really is this a factual issue that we're gonna fight over or at this point in the case? Or can we just say this issue is not, like, a factual dispute. Right? So it's usually smaller parts, and especially I love them for summary judgment. Right? Like, if you can think far enough in advance, that way you don't need to do again, for sometimes just the basics. You don't need to worry about proposed fines of fact for, you know, a contract was formed on this day or some of those sort of background things. I actually really like RFAs for that purpose. So but I will also say it is sort of annoying. On the one hand, I've seen some attorneys really abuse RFAs and send you, like, 200 factual RFAs that then you have to go through and respond to. But now, like, I have a case in the Eastern District where of Wisconsin where it's limited to 50 RFAs, And I had a case in Indiana under the federal rules where it was limited to 25, not even exceptions for, like, document authentic authentication, which, by the way, I've also been reading horror stories about not just AI generated case law, but also AI, like, created documents. Alright. So all of a sudden, like, for so long and, yeah, I didn't really worry. We usually would stipulate nine times out of 10 to whatever a document was. But I'm like, I may have to start going back to, like, RFAs on some of these document issues if I start worrying that this is, like, an AI generated document or something. Kathleen or Mindy, have either of you ex experienced that? I have a case right now in state court where opposing counsel just served 160 requests for admissions on us. Yeah. And in California, you have to add a declaration that it's for good cause and there's things that you have to say. And this happened to be a council that had just substituted in, and it turns out that a number of these were duplicative of other interrogatories and requests that have been asked by prior council. And so we of course drafted a motion for protective order, and here's a little tip folks, if the reason you're objecting is because there's too many is the main objection, you have to actually go for a protective order in California State Court as opposed to letting them move to compel because you will lose that objection. So we had it drafted and ready to go and they decided suddenly to be reasonable, which I'm very happy about because that was still the right result for my client. But don't think I've ever had a case, even when I had a seven week trial case where I asked a 160 RFAs. Yeah. No. That's a ridiculous number of our pays. Mhmm. Yeah. But yeah. No. I we've certainly been on the receiving end of that. We often I deal a lot with asymmetrical litigation, and so there's a lot less fear of if I do this, they'll do it back to me for with those circumstances. So we we tend to deal with, I think, a disproportionate number of really burden overly burdensome requests across the board, RFPs, RFAs, ROGs. When the when the other party doesn't have any documents and much information, it makes it a lot easier for them to go to town kind of freely. So, yeah, having to to deal with the the the burdensome nature. And oftentimes, you know, you've got judges who are like, it's the cost of doing business, and you just have to deal with with dealing with all the responses. But sometimes, you know, you're in forums or the decision maker's a little more reasonable. It's like, yeah, 180 RFAs for a single plaintiff case is probably not a reasonable number of RFAs. So One thing that I enjoyed doing, was we would do multiple sets of ROGs or RFPs. So, like, you know, if we were the defendant and it's just, like, the beginning of the case, you know, I propounded, let's just say, like, four, like, interrogatories and, like, in three document requests for set one. It's like, for for, like, what are you guys talking about? Like, this is a little bonkers. Here's set one. You know, like, let's get some records from you guys so we can start, you know, assessing what's happening here. And then as we learn things, then do, like, set two, set three. And, again, they might be incremental. It's like it's like, I don't need to ask 25 out of the gate if I just have three questions to get the ball rolling so we can understand and and hopefully have a good relationship with opposing counsel so people can just pick up the phone and start talking about what do you actually need. Have any of you tried that approach in any form? Of calling opposing counsel or doing it in stages? Stages. I would hope everyone's called opposing counsel. I think it depends on opposing counsel. But, yeah, certainly stages. Yeah. I never I never wanna use up, like, all of my rogs right away. You know, RFPs, usually, isn't a limit, and so I probably do tend to be more broad with that as, you know, the beginning, you know, especially the catch alls kind of like, you know, anything that may be relevant to your claims or defenses kind of thing. So but certainly the ROGs and even follow-up RFPs, I continue to do throughout the case. Kathleen or Mindy? Yeah, definitely have staged discovery. It depends how complicated the cases, often we'll get or request expedited discovery, and so it'll be very focused on the TRO or pulmonary junction issues, and then we'll move on to other issues. It really depends, but I absolutely agree that the more that you can discuss before everything gets, shall we say heated, So opposing counsel in advance and discuss how you're gonna do this and if their staging is appropriate, the better the case is gonna be for your client and honestly for you. here's a suggestion for drafting your RFP language. There are still folks out there that when they put in their definitions for their RFPs, they think everyone lives in the nineteen eighties still. And so they'll reference microphish and another or, you know, VHS technology that's really not used much, anymore. And I would say, hey. Try updating your language. And I've seen people get a lot better at this, you know, in, defining terms and being able to actually use the language from, you know, federal court rule 34 a one a, and actually reference technology people use as opposed to something scattershot that I'm afraid of missing something. Now fun fact, my I after writing this, I actually found something with MicroFish. It was a FOIA response. And because it was ancient documents, and preview, it's all the government UFO files, which I'm gonna be using for some written material, in the near future. If you're seeing some blog posts, they're in there as well. But it's fascinating because, like, this is MicroFish. I didn't think I would ever see that produced by anyone, and they did. So, again, surprise. But, again, if there's a toxic tort case, like, you might get it then, but most people are not doing that. Like, you're gonna be thinking in terms of emails and modern attachments and and other things that go bump in the night. But my questions for our panelists we talk snailiness. Metadata. How many of you include produce any flavor of metadata in your RFPs? I frequently do because again I do a lot of trade secret cases and the metadata can be extremely important. I actually I don't mean sometimes, I frequently have counsel who produce things either in paper or in PDFs that have not preserved any of the metadata. You know? Not always, but and so sometimes we have to go back and go, we need the original or we need the metadata. I will often ask for the original in those cases because I don't know that I would trust the metadata. But sometimes, you know, sometimes the metadata can be really useful. But I will also say a big but can also be very misleading and sometimes not as useful as it looks when you first see it. Yeah. I certainly, like, use metadata, but I don't usually I don't think it's actually in my RFP definition because either if I'm in federal court, like, we're doing the ESI protocol. And so then we're actually specifically identifying which metadata fields we want. And Wisconsin actually has one of their few discovery rules is if you want electronic information from the other side, basically, like, you can serve discovery right away. But if you want ESI, you actually have to, like, do a meet and confer on that. So kind of the two places I practice the most, you basically have to address metadata upfront anyway. So I don't think I usually, I'll say something in the RFPs, but, you know, consistent with, you know, the protocol that we've agreed to or something like that as opposed to specifically calling out the metadata. Kathleen. Yeah. I would say that's not uncommon for our cases. Obviously, we have you know, we because I'm in our eDiscovery department for part of what I do, I touch a lot of different types of cases across the firm. And either we're in an asymmetrical litigation case where the other side is gonna have very little in terms of data, or we're in a massive case like a construction case or, you know, something along those lines where we have tons of data on both sides and we very early on do, you know, want to come at a minimum to a production format agreement. I'm not a huge fan of extensive ESI agreements, oddly enough. Like, when I when I first started practicing back in, like, 2005, I matter of course, like, did ESI agreements. And, you know, particularly in asymmetrical litigation, I find that they are often more trouble than they're worth. And so unless I unless I have to do one of those cases, I'm not typically going to opt my client into having to agree to a bunch of stuff when the other side doesn't have documents. But particularly in symmetrical litigation cases, I find them to be often very helpful at a minimum for discussing production format issues. So it depends. We also do a fair amount of trade secret litigation. And and to those cases, like, metadata is obviously often hugely important. So I might include them when we're doing those types of requests in a way that I wouldn't necessarily in a single plaintiff employment litigation case. But, you know, better to have asked for it because you can always let it go if it turns out, you know, it's not a critical factor for you than not getting it in there at first. So, like, I try to generally include it in, like, templates that we're sharing or, you know, model language that we're preparing for for use across the firm or by different groups on that basis of, like, can always let go of something you've asked for, but it's harder to get something that you haven't at the outset. So I, so I guess my summary there is on including it, but we don't always do it in all matters. audience participation time on the form of production. I'm a big fan of state the form of production, and we have a poll on this on, like, what do you guys do? Do you say produce natively? Do you say, hey. I would like, you know, PDF with extracted text? Like, do you want tips? There's no wrong answer. Like, it depends on the review application that you're using. Most take both, at this point, in time. It's important that if you are asking for native, you say what you want the, you know, redacted, to be in, which is why, you know, it being in a TIFF or a PDF, is important, as well, thus you're getting a blended production. But, again, big fan of state the form of production and curious to see what what folks, who are participating today, what they do, since we've heard what our panel does. Now, Kathleen raised ESI protocols as did Jess. I know some judges that love them, and I know some judges that hate them, that, like, one at least one federal magistrate judge sees them as, like, bear traps, and he doesn't like them. And I know other magistrate judges that like them because they get people in and start talking. I don't again, there isn't a right or wrong answer. There's the what happens when the, you know, train comes off the track if you're in an ugly dispute with the other side. But, again, it's fascinating to see how people are, you know, handling these, issues. So moving forward, anyone wanna add I think. that's Go on, oh, Jess. I saw a q and a question that I couldn't figure out how to answer. So I was just gonna answer. Somebody asked about what to do if you want more than 25 rogs, or I would say that's also same answer for RFPs. Well, not RFPs, RFAs or even depots. I'm currently in that situation where I want more depositions than we are allowed under the federal rules. My response to that would be either one, you try to work it out with opposing counsel first. Right? I mean, any discovery dispute, that's always the answer. You need to try to work it out with opposing counsel. You usually before you can file anything with the court, you need to certify that you've met and conferred in good faith on the discovery dispute and can't resolve it. And then you just go to the court and basically ask for, you know, motion for, you know, permission to, you know, serve additional interrogatories or additional depositions or whatever. And, basically, you just put in the facts of why in this particular case, you know, be it that it's complicated or it's a really big case or that you know, whatever the reason is why you need more. Mindy or Kathleen, do you want to highlight how we handle that in California? Oh, California is so weird. I love California a lot. mean you have to do a declaration as an attorney saying that there are valid reasons, you know, there's several reasons that are allowed and that you're serving them in good faith, and I believe one of them is you have to say they're not repetitive prior discovery requests, which is the situation that I just ran into. And so they're they're very frequently signed and served, and I think folks may not think about them as carefully as they probably should, because you are citing it under penalty of perjury that this is true. Yeah. I don't think it seemed as much of a limitation given the workaround with the declaration, which is almost a given, I say, a lot of instances. And I'm actually impressed, Mindy, that you guys were able to put enough pressure on opposing counsel to to get them to to withdraw without more of a battle for that. So nice work. mean, we did have to draft the motion. Yeah. But, yes, I was happy about that. So we have a couple questions have been coming in as we've been expounding on this issue. And the question is from, you know, are AI prompts and the generated, responses discoverable? And the answer is it depends. There was a headline yesterday where a client a party did some AI, like, whatever engine for some information, and then they the client sent that information to the attorney. That was not protected. Like, that was not protected by the attorney client privilege. Flip side, if a lawyer is doing legal research, that should be protected because that's work product. So and this is will note yep. I think it depends on what AI tool. Because if you're talking about the case, I saw a case too, and the judge I didn't read the actual opinion. I just read the article summarizing it. Part of it was is because the AI tool that the client was using was not confidential. Right? A lot of these AI tools, unless you're using, like, I don't know. I do know some of them now are offering, like, closed kind of circuits. But if you're using a chat GPT or anything like that, that's not confidential. That was at least part of the court's rationale for saying why those were not protected. So I think even attorneys, and we talked about this, our firm, because we're not California tech cool, we're still really, you know, slower to adopt AI kind of issues here. And one of our big concerns is if you're putting it into any public tool, I do think there's a really strong argument that you have waived, you know, the expectation of privacy and the confidentiality that kind of go hand in hand with privilege and protection. So And I think that was definitely a concern, I think, especially when ChatGPT started getting very popular. And so we saw a lot of law firms kind of doing a closed loop ChatGPT where nothing that would be entered in would be shared outside of the firm. And then we saw legal tech to the rescue, where suddenly there's a lot of lawyer specific AI tools that also have that privacy. So they may use the large language models from anyone or sometimes all of the available vendors, but they then customize it for lawyers. Which is not directly on point, but I will say is a good thing to cover in your protective order or your ESI agreement whether or not the other side can be putting documents, confidential documents, into what kind of Gen AI tools they can be putting things into. Because especially if you're dealing with an opposing counsel or party that's not particularly sophisticated, it may not even cross their minds that putting your highly confidential documents into a GenAI tool that's publicly available is going to just put all that stuff out there in ether. And, you know, not that it would immediately be discovered, but it certainly it's then out there and can be, you know, depending on who else is using the tool and what they're asking for. So definitely would flag, you know, to the extent that you're doing ESI agreements and as you're doing your protective order, which you really should have in pretty much all cases, making sure that you get that, you know, Gen AI component addressed and the use thereof in the order, I think, is really important these days. I Yeah. And and it's not just the GenAI tools that are causing problems. Right? Because people are now online for, you know, a good chunk of their lives, and so they may be using other tools that aren't AI to maybe share a document or to mark it up with with their other people in their company or their family. And, you know, we had a case where somebody just ran across a a client communication, you know, online somewhere. And, you know, so you you it's hard to address all of those instances, but perhaps one way is to think about saying where you can store these and what you can do with them. Because if you try to say all the things you cannot do, there's gonna be a new widget invented tomorrow that you might not have listed. I've read protective orders in the last, I don't month that addressed what platforms could be used and if it, like, closed loop, make sure it's not going into the public. In prior life, someone who was developing an AI tool, their base data was health records. And when they, you know, asked me to look at it, I said, are you kidding? Like, do you like, do you have permission to do this? So, like, oh, yeah. We have permission. I was like, k. Like, I'm not representing you, but I would not do that. Like, that just seems bad mojo, HIPAA violations, and all kinds of privacy issues for you to test your new toy. And Josh that's a really good I mean it's not just the client that might be violating it, but if you have cases that have healthcare data and you're storing them on any like e discovery website or using any tool to do it, you need to make sure that you're complying with HIPAA and any other health rules and laws fully, which may mean that you need to have some sort of specific agreement with those vendors. Yeah. This was a start up, and they were a little cavalier for my taste. Of course, they were. But. but but lawyers can easily fall into that trap. Right? Because we think all of our tools are are fully compliant, and they may not be. Okay. Mhmm. So fun things to keep us up at night. So some other questions that have been coming in. Has anyone seen a case where a confidential client document was made public through a GenAI query? I have not seen that. Have any of you? I think the odds in that happening are very low, which is why I kind of personally have an issue with the cases that say if you're using a public GenAI tool that it's now public, because although it may may be used to train the AI model, the odds of any one person anywhere in the world actually seeing that document or or seeing the contents of that document are very slim. Yeah. It's slim, but there certainly have been, and particularly in the trade secret cases, instances where people have identified that they've had a a leak of confidential information through finding parts of their code that came back in response to a to a GenAI query. So I don't know, to answer the question, if I've seen, like, a full document that has become unconfidential through that. But, certainly, confidential client information has been identified or discovered through that interaction. Another question that came in was about early depots. You know, we've done early depots, not all not always a thing. Sometimes we'll just let rely on written discovery. Have any of you done the early depot to help shape a case? I mean, I've done early depositions in trade secret cases because again, it's usually for the preliminary injunction, and we usually put a provision in that says that we can do a second one later. We definitely get some good information there that helps shape the case, but overall I prefer to get the written discovery first and then get the depositions in. Yeah. I am so actually, like especially the older I get, I'm so document heavy on depots that, like, that's you know, it's just I have found, like, the sad truth is it's way easier for witnesses to lie or to not remember things, if you don't have documents you can put in front of them. So, again, like, maybe there's a case where, yeah, I think that this is a stupid case that should just be resolved early. Maybe there might be a few strategic reasons to do an early depo. But if I know it's, like, a legit case and documents are gonna be a key part of it, I would just not blow my depositions early before I have those documents. So let's talk about the the identifying common themes, so which is one of the perks of doing written discovery. You know, we've talked about, you know, like, the drafting side, but the responding side, like, how do you do you identify common themes? Do you just attack the rogs in figuring out responses and then do the request for production? What's your strategy? How do you like to attack that problem? And, Jess, could you kick it off for us? I was like, that's a complex question because I don't know if I have, like, a set way I always do it. But I guess, to me, like, you know, there's two parts. I'm usually involved in big enough cases that I'm like, alright. We start the document collection process, you know, sometimes even before I get the RFPs just because I know kind of, like, we're gonna have to produce a whole bunch of stuff. But, normally, I stress a little bit less about that. I'll get the document started. I'll send the RFPs to the client. But usually, the ROGs are what take more time with the client and that are much harder because this is basically, you know, written sworn testimony from the client on these issues. So so I'll, I'll kinda take a look at the RFPs. I'll make sure that I understand, like, the general categories. I'll talk you know, send those off to the client to look at, but I do like to focus first on those, Raj, just because it seems to me that that's often the hardest thing to pin down the client on is answering those. Kathleen? What sorry. Was the question there what order of what was the exact find how? do you find common themes between the ROGs and request for production? Yeah. I think that's a really hard that's a hard call between is it harder to get them to identify the themes for the rugs, or is it harder to get documents out of your client? And, I mean, you know, it varies from from one client to the next. But I think, you know, Josh, one of the reasons I think you wanted to do this webinar was the point of really needing to view responses holistically. Mhmm. And I think that can get something is something that can get lost, especially if you're at a larger forum or you have multiple people that are working on doing responses because whoever's drafting the RFP responses might not be the same person that's drafting the raw responses or the RFA responses. And so trying to make sure that you've got that continuity and you're thinking holistically across all of those data all of those response sets, I think, is really important. And knowing your client, like, knowing if they're a client that takes, like, really long time to get you documents, or is this a client that takes a longer time to get their facts marshaled? Like, where where do you need? You can only have them focus on so many things at once. Right? Right? You ask too many questions, and it just gets lost lost in the ether. So, like, figuring out where to prioritize, I I think, is important. But, you know, trying to stage it so that as you're doing your responses, if you're not doing them at the same time, at least that you're cognizant of what was in the other sets, so you're consistent across them, I think, is a really important factor. Mindy, how about you? Yeah. I mean, I agree. You really need to do it holistically. And again, for my trade secret cases, I usually need a lot of documents, and I need them very quickly. And usually, before we get discovery requests, I mean, I'm on the plaintiff side, the trade secret owner side, we need to marshal those because I'm going in for a temporary restraining order. And so I I I my my clients talk to me sometimes more than they talk to their families for the week leading up to filing that. And, you know, I'm I'm still very good friends with a number of clients I've had trade secret cases with probably because of that. But but you do need to really get to know, you know, how the client is keeping things. And sometimes so that, you know, like there was a case that I was involved with, unfortunately this was on the other side where this happened, but you know, we were deposing an IT person, and you know, client said all along we don't have any backup at backups. Everything's gone. And as many of you know who have ever dealt with this, like, IT folks like to keep things because that's their job, is to help you find things. Right? And so when we depose this person, he's like, oh, yeah. I have I have a whole three boxes of backup tapes in my closet that I kept because I because people kept asking for information. That was not good. So I'll wait for them. It was great for me and my client. But so it's not just, like, knowing who to ask, but it's also knowing, you know, what the retention and and honestly, if this is an ongoing client, like, counseling them on what they should be doing and making sure that they're actually, you know, following their retention policies because it's very rare that we find an old document that's going to make the case for us, but we often find documents that are not helpful. And even if they're neutral or, like even if they're neutral, it's expensive. Right? The more documents you have. to deal with, the the greater the expense. And, I mean, I had one client where we used to do a lot of subpoena responses because they consulted on mergers and acquisitions with regularity. So, you know, and at one point, they changed their retention from, like, ten years to, like, two years. And then in certain instances, longer, you know, if they had things that were regulatory. But just that one difference of, like, implementing the two year retention by default for most of their categories of communications instead of indefinite, like, brought their eDiscovery costs down, like, so significantly. And you know, granted our tools are getting better and better, and it's getting more cost effective every day. But, like, if you don't have the data, you don't have to come up with an efficient tool to sort through it either. So just from a cost management. perspective, as long as you're not getting rid of things that you already need for litigation, which, you know, gotta be Absolutely, preserve that. yeah. But I think people with not just email, with Slack and texting and Teams and Zoom chats, people treat those very casually like they're talking on the phone, and they don't necessarily think about what the legal implication of their word choice can be. And so that that's usually not helpful. So if you don't have to keep it, really think carefully about that. Again, it's also the maximum of pretend this is being read out loud in court and, Yes. you know, so you don't ruin your day. So let's part of the the goal for the holistic response is you don't want inconsistent responses. And, like, there there could be the case law is a little divided on this and having a clear answer, but you could be seen as being evasive, having incomplete answers, like, and just, like, not answering the question. And, like, you just and, like, if they're verified responses or, like, for both of them, you could have egg on your face in a depot and, like, you just don't want that happening to your client because you don't want your client feel like they're getting cooked alive by the other side. So be consistent, which raises. something that I think is fun since we're we're running out of time here, but production indexes. People debate this because some go like, hey. I produced in the ordinary course of business, or California just says you have to do an index for documents. I don't think that's a good idea. Like because I've I've run into those who are like, I don't need a label. I gave you ESI. Well, if they do a interrogatory asking you to identify everything, well, that's out the window because you now need to identify everything, which raises the question of, like, to label or not to label. And you have ROGs and, you know, document requests that could be overlapping that you should have an index for. Who feels strongly about labeling and making production indexes? Strongly is in that it's a good thing, or strongly is that it's a bad thing? Strong is a good either. it's well, not doing it, I think, is a bad thing. But, why is it a good thing to do is a better better question. I just I mean, I personally am not a I I it's not it's not a fun exercise when you're producing those documents to have to go through that that to do that. It can be very difficult. I mean, the the ediscovery tools have made that a lot easier, but it it still feels like an extra step when you're just trying to get the documents out the door. Yeah. I generally don't do it. Sometimes you're right. They'll be like, okay. Like, identify all documents. You know, if they send a rug, and I'm like, alright. Then this is not a bad exercise for me to put it all out there. But, yeah. I mean, it used to be, and I still do have on some of my smaller construction cases that are still very paper based. You know? I'll actually have an attorney send over, like, a binder where it's literally, like, you know, here are all the documents that are responsive to RFP one, RFP two. And I'm like, okay. That is adorable. Unless I'm forced to buy a court, I am not doing that. So, like, I produce them in the ordinary course of business. You go figure it out. Sorry, Josh. Josh needs to school all of us on why we need to do this. Yeah. Kathleen, are you gonna a harder time, I think. gonna leave me here crying in the corner? What how what's your view on this? Well, I think just because at least in a jurisdiction where, you know, arguably, it's not required, whereas I think it's a lot harder to get out of that under that requirement in California. And maybe you have a judge that you convince that only applies to documents and, you know, not ESI, but I think it's I think that's not going to be the winner argument in most instances. And are you gonna spend more time fighting about it than just doing it? Obviously, you know, if you've got a case where you have a voluminous amount of documents, it's much more of a burden than you do than you might have if you've got, you know, a smaller volume case. But, yeah, there are ways to to Mindy's point out that this can be addressed, you know, through the use of issue tagging as you're reviewing documents. If, god forbid, you did a bunch of review and didn't issue tag, there are now some tools that can be leveraged to to help with that process. And, you know, it doesn't have to be perfect either. Right? You're making reasonable efforts to get things in the right categories and respond to them. But I will say from an ESI perspective, like, whoever produces in the ordinary course of business, like, what? Are you taking, like, folders or documents from your client and giving them to the other side, like, just willy nilly? Like like, I don't even know how you would make that argument, like, very successfully in an ESI context. It's like you're you're not producing in the ordinary course of business when you're giving ESI. You're just not in in the vast majority of instances. We've had a time or two where, you know, things really are exactly the way that the client kept them and you're just copying over a bunch of construction law documents or something and giving them over. But it's those are rare, rare instances. So I think at least in California state court, having that in mind as you're going into the review process is a really good idea because otherwise, it can be a lot of work to have to go back and either do it later or fight about it later. So I'm gonna start that's right. I'm gonna start a PSA campaign for Tag It and Yeah. Just Tag It, so you can make an index. And, like, for those who are asking questions, yes, that could be used in in for in your production, as well. But we're close to the end. But no discovery is complete without a verification. Mindy, can you tell us the importance of verifications? You have to have them. And if you don't have them, you actually haven't served a response in a timely matter. Now how often have all of us said verification to follow? We've all done it. It's it's technically not compliant. I actually try when I'm doing the the discovery conference to say that to agree to that, or I will call opposing counsel if I know I'm not gonna get the signature and say, hey. This is coming next week. Are you okay with that? And confirm it in an email. But, you know, I have seen a few cases where people have filed and said they did not get compliant responses because the verification was not served. Are judges gonna be excited about that? Probably not. Well, in California, the timing for the motion to compel doesn't start until you get the verification. Yeah. So, like, if you're a week late, like, the the clock hasn't started yet. So, like, But since you serve it timely, the other side could argue that you didn't your objections are waived. So I mean, there is a real risk there. How high of a risk that a judge is actually gonna go all that far if you served a verification a couple days late? I don't think so, but it is possible. Yeah. So we're at the last minute. I'm gonna turn things over to j q. Everyone, this has been this is what I live for, getting to discuss SIP Pro. So, which is why I'm alone. So j q, take it away. Thank you all. Thank you so much, Josh. Thank you all so much for our panelists. You guys have been absolutely amazing. I love the chemistry, the fun we've had on here. And thank you everyone for joining us today. We appreciate it. If you would like to come back and watch this webinar, again, you can use the same link. There's also a copy of the PowerPoint that we went over today in the docs up at the top, in the top corner right by chat and q and a. And we hope that you'll be able to join us for another webinar. You've got a survey in front of you. Hope to hear from you soon. Anything we get the poll results? our panelists before we walk off? Yeah. The poll results. The poll results. What great questions. I'll pull them up here real about. the first one. I just wanna see what what one. Mel Brooks is looks like by far space balls. Okay. Baseballs. Alright. Yes. That's my favorite. Me too. Alright. Thank you. Thanks, Absolutely. everybody. Take care, everyone. Bye. Thank you. Thanks, all. Be well. Alright. Bye. Bye.