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E-discovery a hard sell at law firms

Kelly Twigger (left) and Cristina Hernandez of Milwaukee-based ESI Attorneys LLC stand on the lakefront overlooking the city of Milwaukee on Tuesday. ESI assists law firms by culling electronic data. (Staff photo by Kevin Harnack)

They’ve combined legal expertise and technological savvy.

They’ve carved out their place in the complex world of electronic discovery.

Now, the handful of Wisconsin lawyers who are focusing their practices on the specialized field are trying to overcome the skepticism of a legal community accustomed to going it alone.

Traditionally, when law firms need help combing through gigantic files of data or sifting through mountains of social media pages, they hire vendors to do the work.

But e-discovery lawyers are trying to refine tradition. They’re trying to sell law firms on a service that not only pinpoints the correct vendor for a particular type of investigation, but also translates the data into usable information for a legal case.

“Are we kind of middle men?” asked Kelly Twigger, who founded e-discovery firm ESI Attorneys LLC, Milwaukee, in 2009. “That’s a simplistic way to say it, but it’s not wrong.”

At this point, she said, the middle-man role achieves only varied degrees of success. Depending on the month, ESI’s contracts with law firms account for 10 to 40 percent of the overall workload. The rest comes from either in-house attorneys or direct clients.

For a flat fee, hourly rate or alternative fee arrangement, ESI will assess the scope and volume of relevant, electronically stored information before and during litigation and also provide legal advice on how to navigate the often tedious culling of that data.

Sometimes it takes two hours, Twigger said, sometimes 200.

But it’s the number of buyers that determines the value of a service. And local firms, large and small, still lean toward handling e-discovery in house or directly hiring a vendor.

Heather Poster, a partner at family law firm Becker, Hickey & Poster SC in Milwaukee, said the natural inclination in, for instance, divorce cases that involve preservation of email or social media pages is to hire a technology expert, rather than another attorney.

“We’re attorneys who can look up the law and what we need to do to meet admissibility standards,” she said. “What we don’t know is how to do an exhaustive search and find out what we can get from a hard drive.”

Foley & Lardner LLP follows a similar strategy, keeping the bulk of e-discovery in house.

Milwaukee attorney Eric Maassen, chairman of the firm’s E-Discovery Functional Specialties Group, said Foley has a core of attorneys knowledgeable in the practice and doesn’t need to inject outside counsel.

“We’ve got the horses we need,” he said. “As far as vendors, we might hire someone not so much for e-discovery expertise, but just to do the technology stuff.”

Money, Twigger said, often is at the root of firms’ decisions to keep e-discovery in house.

“Do law firms think they are being cut out of something when they are not utilizing their own people, especially in this economy?” she said. “I’m sure that is a consideration within firms.”

She also said attorneys often are reluctant to admit “not knowing what they don’t know.”

But the cost of e-discovery, Twigger said, can escalate quickly into hundreds of thousands of dollars, and clients don’t want to lose cases because their lawyers are too afraid to learn.

Cristina Hernandez, who joined ESI as a partner in June, said ESI runs into resistance from law firms, in part, because of stubbornness.

“I think lawyers think they can do everything in litigation from soup to nuts, and this is becoming an area that is very difficult to do that on your own,” she said. “And it’s really not necessarily the best for the client for that to happen.”

But it’s difficult to convince law firms, said Bruce Olson, an e-discovery attorney in Appleton. Olson runs ONLAW Trial Technologies LLC and offers forensic evaluations and legal advice for between $250 and $300 an hour.

He said e-discovery attorneys, unlike tech vendors, are objective in connecting their clients and, by extension, the lead counsels to the best solutions.

“Specialized attorneys,” Olson said, “can readily take requests for proposal to the market tailored specifically to the needs of a client and cut through what vendors give you.”

The law firm market might be opening slowly, Twigger said, but it’s definitely opening.

“I think what firms are starting to understand is e-discovery requires a lot of legal judgment and technical support,” Twigger said. “IT people are not lawyers, and there is that knowledge gap right now.”


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