Consilio In Action: A Problem-Solving Partner in Complex, eDiscovery-Intensive Litigation
Even in the most straightforward litigation, eDiscovery can be challenging. But in an incredibly complex case, when eDiscovery becomes a massive undertaking, it’s critically important to work with the right legal consulting and service company.
Alex Ehmke, a senior associate at Latham & Watkins, knows that all too well. When faced with a very complicated, eDiscovery-intensive matter involving more than 100 individual arbitrations and more than a dozen regulatory actions—each with its own discovery rules and parameters—the firm leveraged the expertise of Consilio to get the job done. “They’re problem-solvers, not order-takers, and that makes all the difference,” he says.
Not Your Average eDiscovery Consulting and Service Company
As a senior associate in Latham’s Litigation and Trial Department who regularly works on regulatory investigations, securities litigation and complex commercial litigation, Alex has considerable experience with the complexities of eDiscovery—he has become very familiar with the technology and service providers operating in the space, and it has developed into one of his strongest skill sets.
Alex had already worked with Consilio for years, including at his prior firm, before joining his current firm in 2019. By that time, the client already had a preexisting relationship with Consilio, so he was happy to renew that connection.
It wasn’t long before he was working closely with his Consilio project management team. That team included project managers Matthew Arb and Brooke Blake. As Alex noted, the challenges in his case required far more communication and coordination with Consilio than you would normally expect between an eDiscovery service provider and the legal team.
When comparing Consilio to other major eDiscovery companies that Alex has worked with on complex commercial litigation matters, Alex says, “The contrast could not be more stark. Many vendors are very technically competent and qualified, but they almost work like a conveyor belt: tasks are given to them, they do them correctly, they report back, and then they wait for the next task.”
His experience with Consilio has been quite the opposite. “They’ve been problem-solvers and partners,” Alex explains. Having Consilio in the driver’s seat for one of the most complex matters in his career has made all the difference in making progress on the case efficient and cost-effective.
A Critical Partner on a Matter That’s as Complex as They Come
If ever a case needed creative problem-solving, it’s the one Alex is currently working on. Unlike most cases with investment-related claims by numerous customers, the matter has not been consolidated into a single case—which would have made discovery far more manageable. Instead, there are more than 100 individual arbitrations brought by more than a dozen different plaintiffs’ attorneys, as well as regulatory investigations and inquiries from the SEC, FINRA and more than a dozen state financial and securities divisions.
Each of these parties has made its own discovery requests, many of which are governed by differing discovery rules regarding issues like the scope of discovery, the devices that are subject to collection and the parameters of productions. On top of that, there are multiple outside law firms, as well as sophisticated in-house counsel, who are actively involved and regularly coordinating.
Consilio’s challenge was to organize and maintain a database of 30 million documents among all these interested parties, taking into account the specific discovery-related nuances of each arbitration and regulatory matter—all while minimizing costs and being as efficient as possible. Given all the possible permutations of discovery requests that might come in, Consilio needed to create a flexible, defensible and repeatable framework for dealing with them. And Consilio had to make decisions about how to design a framework at a time when there was no way of knowing how the matters might grow or change.
As Alex explains, “It was less about our giving orders that they followed, and more about their being a collaborative partner in establishing a framework for how to achieve our broad goals for the case.” Consilio worked closely and collaboratively with Alex and the other members of Latham’s team. “If we had not had Consilio’s assistance and insight in coming up with the strategic approaches and trying to figure out the shortest way to get from point A to point B, it would have required far more time and effort to complete many of the same tasks,” Alex says. “The difference is night and day when compared to working with other service providers.”
The Consilio Team
Alex’s working relationship with Matthew and Brooke has been a resounding success. Not only have they consulted as partners to come up with solutions, but also Consilio’s ability to be proactive, creative and agile on several fronts has been a crucial factor in keeping the matter on track.
Starting in May 2019, the Consilio team began designing a technical framework for how to handle discovery and minimize costs in a way that would be flexible enough to deal with both known and unknown future requirements. Working closely with the various stakeholders, Consilio developed a database structure, workflow and reporting arrangement that would simplify the complex requirements of managing the simultaneous processing, review and production exercise for the numerous individual claims and the large number of documents.
This was enshrined in an internal playbook, which evolved over time as new challenges were encountered and overcome. To help control costs, Consilio enhanced its standard reporting to ensure full visibility into what had been done and what was left to be done. This included assisting the client in minimizing data collections, as well as keeping track of when classes of documents were last accessed, proactively seeking instructions on the sidelining of that data.
The Consilio team also successfully navigated an extremely aggressive, fluid and multifaceted production schedule that required adapting productions based on what needed to be done first, rather than just blindly setting a fixed queue. “At no point did anybody at Consilio say, ‘No, you just need to lower your expectations, or you need to go back to the regulator and convince them not to need this from us right now,’” Alex explains. “They committed to getting everything out when we needed it to go out, no matter what it took.”
Matthew and Brooke were both problem-solvers for Alex, who said that they were constantly thinking about ways to make things easier. “I can’t tell you how many times I sent emails with abstract questions and immediately got phone calls back, even on a Friday evening,” Alex says. “These aren’t people who are just clocking in and out of their jobs. They’re people who really care and find their work interesting.”
The Consilio team, in Alex’s opinion, displayed an extraordinary level of responsiveness and practical common sense that materially impacted the success of the case. Beyond simply managing productions, they thought proactively about issues and helped train junior associates on new technologies. “Essentially, what Consilio has done is helped to create a powerful team of unbelievably competent, eDiscovery-specializing junior associates,” Alex explains.
So would he want to work with Consilio again?
“Absolutely. I have the highest respect for our current Consilio team,” he concludes. “What I’ve learned from this experience is that it very much depends on the people. I trust Consilio, and when they assign me people, I’ll trust anyone they vouch for—I think they’re extraordinary.”