Keteltas, Jenson Named Chairs of Baker & Hostetler E-Discovery Team

Evan Koblentz

Law Technology News

12-07-2012

Baker & Hostetler partners Gilbert Keteltas and Karin Scholz Jenson have been named co-chairs of the firm's e-discovery practice, known for its role in recovering funds for victims of the Bernard Madoff scandal and for the team's Discovery Advocate blog.

The duo are replacing John Parker and frequent Law Technology News author Judy Selby who established the unit in 2009.

"After two-plus years of setting up the team from scratch, John and I were ready to hand over the reins," Selby explained. She and Parker remain team members.

Keteltas and Jenson jointly explained their plans and perspectives to LTN by email.

LTN: In what new directions will the team move under your leadership? Will you focus more, or less, on any specific legal or technology areas?

K/J: We intend to drive a greater focus on the advocacy side of discovery, while continuing to deploy leading technologies on the litigation support side. Rather than treat electronic discovery as a back-office litigation support function, we think the practice of discovery is at its best when seasoned litigators apply targeted advocacy — using the latest developments in the law — to address the costs, burdens, and risks of litigation.

LTN: Predictive coding is the hottest topic in our field. Now that we're beyond the stage of initial court decisions, what are your thoughts on the next steps for that technology — are there specific court decisions that you feel are still needed? What about from the vendors — do you see the need for any new software features?

K/J: We have been engaged in at least three major matters to help sophisticated clients assess the real benefits and costs of leading predictive coding tools. We believe we are just seeing the beginning of meaningful court decisions on TAR. No case has yet analyzed or blessed the outcome of a TAR process. If anything, the case law — and the costly litigation sideshows that some of the cases suggest — may be a disincentive for some to test the waters of TAR. We approach predictive coding by: (1) first assessing whether the case is appropriate for TAR, and (2) negotiating protocols with our adversaries that will avoid extended motions practice over TAR itself (which could eclipse any cost savings from the use of TAR). We think TAR is exciting and are using a variety of TAR tools. In 2013, we would like vendors to show us that TAR tools are not simply more efficient than traditional tools and processes in locating relevant documents, but are better and more efficient than traditional review tools and processes in finding the IMPORTANT relevant documents.

LTN: Readers tell us their top priorities are cost and defensibility. What does Baker & Hostetler do to help reduce e-discovery costs and to improve defensibility? What else are you hearing from your clients about their own priorities?

K/J: Again, the answer is advocacy. By focusing (often with our adversaries) on how to get to the information needed to resolve matters actually in dispute – rather than all information that meets the broad definition of relevance — we are often able to significantly limit the scope and volume of discovery in even the most complex litigation. Staged discovery in class actions is one example. Through substantive early discussions with our adversaries, we have been able to reduce the scope of custodian-based discovery by as much as 80 percent.

LTN: Which products does BH use in-house for each aspect of the EDRM?

K/J: Many. We do not currently have a preferred in-house platform.

LTN: Do you have any e-discovery predictions for 2013?

K/J: We think 2013 may be the year in which e-discovery becomes mainstream. The "e" leads some people to say, "I don't do that." But the procedural rules recognize that e-discovery is just a flavor of discovery. As of August, the model ethics rules now require technical competence of all lawyers or at least enough technical competence to know when to call in skilled e-discovery practitioners. This may be the year when people stop thinking about e-discovery as just a trend or litigation support function and realize that it is a key component of high level client service.

LTN: About how many of your firm's cases involve e-discovery? What approximate fraction is that of your firm's total number of cases handled?

K/J: That is something we are trying to get our arms around. But virtually all of our cases and investigations involve some form of electronic discovery. ... It's rare that a case would not have electronic discovery to some degree. As one of our partners likes to say, everyone is carrying around potentially relevant electronically stored information in their pocket or purse. Discovery is e-discovery now and has been for some time.

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Evan Koblentz is a reporter for Law Technology News. Send email or follow him on Twitter.