Rational Speaks with James Sherer of BakerHostetler on E-Discovery and Information Governance

Tom Preece, Rational’s Business Development Manager, recently spoke with James Sherer about his work as a litigator, author, e-discovery practitioner, and Information Governance thought leader. James Sherer is Counsel at BakerHostetler, where he co-chairs the Information Governance practice team and serves as part of the E-Discovery and Management and Privacy and Data Protection groups. His work focuses on litigation; discovery management processes; enterprise risk management; records and information governance; data privacy, security, and bank secrecy; technology integration issues; and related merger and acquisition diligence. James holds CIPP/US, CIPP/E, CIPM, and CEDS credentials as well as an MBA in finance; is a member of The Sedona Conference^® Working Groups One, Six, and Eleven; and writes and presents on e-discovery, information governance, privacy, investigation, and merger and acquisition issues.

Tom Prece: Your previous and current experience gives you a unique perspective into the shortcomings of the typical e-discovery process. As a litigator and as part of BakerHostetler’s E-Discovery and Management practice group, what is the most overlooked error? How is it best addressed?

James Sherer: I’m lucky that I’m able to bring my E-Discovery experience most directly to bear in the cases I’m involved in, and lucky as well to work at a firm with a team focused on E-Discovery and its application in litigation, regulatory response, and even merger and acquisition activity.  BakerHostetler’s E-Discovery and Management (“E-DAM”) team is comprised of practicing litigators, and operates in close concert with but still separate and apart from BakerHostetler’s Litigation Support team.  E-DAM practitioners provide strategic advice to case teams advocating intelligent discovery decisions.  They are also expected to be well-versed in technological choices as well as the laws specific to discovery, including the recent changes to the Federal Rules.  We’re therefore involved primarily in two phases of litigation: when we’re part of the case team generally, where we’re helping with that advocacy process with only the discovery aspects of the case but also witness selection and some points of overall strategy; and when there’s a problem specific to discovery, usually on the pleadings side.

Given all of that background, it’s my opinion that the most consistent issue I—and other people on my team face—is the thought that the technological solution will be “push-button easy.”  It’s just not.  And the solution to that predicament is being able to work with the other attorneys on the case, who often include attorneys working for the opposing party or the government, and being straightforward about exactly what the technology will do, how it operates, what the timing looks like, and what the end result will be.

Tom: From a former in-house counsel at a Fortune 500 company to now a co-chair of BakerHostetler’s Information Governance team, your perspective on IG has surely evolved. Knowing what you know now, what would you have done differently and why?

James: I don’t know if I would be able to do it “differently,” but I think part of success in this area of practice is continual improvement of listening skills.  The engineers who build the technologies are excited to talk about them; the people who build internal processes are just as excited to share.  The key here is not telling people what you think they’ve said (or what they mean).  Instead, active listening provides them with the opportunity to explain what they mean.  The same holds true when interacting in peer groups within the E-Discovery, Data Privacy, and Information Governance spaces.  Because active participation in these spaces means attending events and becoming involved in associations, a practitioner will see his or her peers over-and-over-and-over again.  An elevator speech is unnecessary.  Active listening is better.

Tom: You are a prolific published author. The BakerHostetler website lists 13 papers that you authored or co-authored in the past 2 years alone. What is your next topic and why are you choosing to write on it?

James: Thank you.  It’s been a lot of fun, and most of the opportunities I’ve had to write have come from the people I work with or who I’ve met within those conferences and associations I mentioned earlier.  I write either for the opportunity to write with people I respect and/or because I’m excited to learn from the topic.  The best opportunities, of course, are those that involve both.

Most immediately, there is a cross-border Bring Your Own Device (“BYOD”) paper that will be published any day now in Bloomberg BNA that I co-authored with two other BakerHostetler attorneys.  I am also one of five authors (including a law student) who contributed to an already-submitted second Merger & Acquisition Due Diligence paper that Richmond’s Journal of Law and Technology (“JOLT”) will publish this spring as a follow-up to our prior 2015 M&A article in JOLT.  And I was one of three BakerHostetler attorneys contributing to an ABA book chapter on discovery-related search standards that was submitted earlier this year.

Finally, I’m currently writing another JOLT paper with two colleagues on the ethics of data privacy for JOLT’s February conference, and another drafting team I work with is submitting a paper for peer-review to the ECCWS conference in Berlin this summer on C-Suite recognition of insider threats.

Tom: As member of The Sedona Conference Working Group Series 1, 6 & 11, you have contributed to their thought-leadership articles as well. What are the common threads that run between Information Management, e-Discovery, and Privacy/Security?

James: Within the Sedona Conference, and as a supporting member certainly speaking only for myself, I’ve noted an interesting practice when it comes to drafting the advice the Sedona Conference provides.  That is this: the drafters work to define, examine, and explain the specifics of the issue, whether it is a specific technology or protocol or point of law.  But much of that research and discussion—and it is very active discussion—doesn’t make it into the final piece.  That is because the Sedona Conference wants its work-product to last.  Its members are aiming for principles that won’t become outdated as soon as the guidance makes it out of committee(s).  And that’s a great process to understand when you’re relying on the principles as a practitioner: that the people who drafted them weren’t just thinking about “principles” when drafting.  Instead, they were applying true, open-ended, inductive reasoning.  They start with the specifics of the real world, and divine and present their principles from a background of true understanding.

Tom: The article “M&A Due Diligence…,” which you co-authored, suggests that the synergies of a framework encompassing Data Privacy, Information Security, E-Discovery, and Information Governance are necessary to a successful M&A deal, an event meant to find synergies between companies. For those who can only muster the focus to read a blog post as opposed to a 76-page paper, would you mind recounting the highlights?

James: While I still encourage interested readers to read both the first paper and the soon-to-be-published second paper, I think the overall point of the paper is that the time has come to include E-Discovery, Information Governance, Data Privacy, and Information Security in M&A due diligence.  Which is not that big a stretch; I and my colleagues are certainly involved in those types of due diligence projects on a more-or-less consistent basis.  But the article suggests that it’s not enough to think about these issues when they are impossible to miss.  Instead, even if these issues are ultimately unnecessary for a given deal, there is still value in their consideration.  Secondarily, once participants have determined that one (or all) of these issues should be part of the process, we present a framework for that type of consideration—hopefully providing value for people who are relatively new to this kind of work or these kinds of issues.