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E-Discovery in a Post-COVID World

When it comes to e-discovery, savvy litigants and litigators who take the time to proactively tweak their practices now will be well-positioned for effective advocacy (and intact litigation budgets) in a post-COVID world.

By Kim Beight Kelly
Published in Texas Lawyer (June 08, 2021)

Kim Kelly Web

Kim Kelly is a civil litigator in Phillips Murrah’s Dallas office who represents individuals and corporations in both federal and state courts.

By now, we are all aware of the explosion of digital connectivity necessitated by the COVID-19 pandemic. While the pandemic will eventually end, changes like increased remote work and reliance on digital communication are likely here to stay.

These societal changes spell certain increase to our digital footprints and for litigants, changes to the discovery landscape for electronically stored information (ESI). As experienced litigants know, discovery of ESI (e-discovery) can be a budget-buster involving costly disputes, production, and even sanctions if a party neglects its obligations.

Oftentimes, these issues can be avoided with simple planning and effective communication with opposing parties. Post-COVID e-discovery is no different: revisiting standard e-discovery practices now can make all the difference in litigation expenses and outcomes in the years to come.

Prior to the pandemic, discoverable communications generally included text messages, emails, and social media messages and posts. As time goes on, lawsuits will increasingly involve events during which parties relied more heavily than normal on these traditional digital communications and perhaps integrated new technologies like Zoom, Slack, Microsoft Teams or other collaborative platforms. For litigants, this means: (1) an increase in the volume of potentially relevant ESI; and (2) additional non-traditional sources of ESI.

As with any emerging issue, it will take time for courts to issue meaningful guidance on how to preserve, produce and request ESI in a post-COVID world, particularly from these non-traditional data sources. In Texas, courts have historically taken a measured “common sense” approach to e-discovery. Proportionality is the name of the game; baseless, oppressive requests for ESI and boilerplate objections will not win the day. Parties are encouraged to work out e-discovery issues on their own and, if court intervention is necessary, must come prepared with real facts on which forms of ESI are available, and the benefit and expense of the ESI they seek to compel or resist.

With this background in mind, it is reasonable to conclude that post-COVID litigants should continue to prioritize knowledge of each party’s systems and available ESI from the outset of litigation. For example, before sending out discovery requests for ESI, a party should consider whether to first request specific information regarding an opposing party’s systems and practices to better tailor their substantive requests.

Given recent rapid changes in many workplaces, these types of requests might be appropriate even when the party or attorney used to be familiar with the producing party’s systems. Litigators should adopt the same attitude toward their own clients and ensure from the outset of litigation that they have up-to-date information on their systems and retention policies. Counsel may also consider whether to update form discovery requests, instructions and definitions to include, for example, Zoom recordings or chats, prior versions of collaborative documents, or communications on other platforms.

As with much in life, an ounce of e-discovery prevention is worth a pound of cure. Savvy litigants and litigators who take the time to proactively tweak their practices now will be well-positioned for effective advocacy (and intact litigation budgets) in a post-COVID world.


Reprinted with permission from the June 08, 2021 edition of Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.


For more information about this article, please call Kim Beight Kelly at 214.615.6372 or email her at kbkelly@phillipsmurrah.com.

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State Lawmaker considers damages caps on civil lawsuits

Ashley M. Schovanec, Phillips Murrah Litigation Attorney, was quoted in a Journal Record article by Steve Metzer regarding the decision by Chris Kannady, chairman of the Oklahoma House Judiciary Committee, to consider a legislative compromise to a ruling that made caps on certain damages in civil lawsuits unconstitutional.

Attorney Ashley Schovanec Web

Ashley M. Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Read Schovanec’s comments below:

Ashley M. Schovanec, a litigation attorney with the firm of Phillips Murrah, said another result of the Supreme Court’s decision might be that businesses will be more likely to settle lawsuits than contest them on legal grounds,

Because the risk of large verdicts just went up, cases may settle earlier because of the uncertainty associated with leaving a damages calculation up to a jury,” she said.

Read the full article from the Journal Record.

Phillips Murrah welcomes two new attorneys to legal roster

Travis Harrison, Jim Roth, and Martin Lopez III

OCU Law Dean and Phillips Murrah Director Jim Roth stands between OCU Alums and new attorneys Travis E. Harrison and Martin J. Lopez III as they celebrate passing the bar exam.

Phillips Murrah is proud to welcome Martin J. Lopez III and Travis E. Harrison to our Firm.

Phillips Murrah welcomed Martin to the Firm’s Litigation Practice Group as an associate attorney where he represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Martin attended the Oklahoma City University School of Law where he served as class president, also serving as the Student Bar Association President his third and final year. He was also a member of the Oklahoma City University Law Review. Additionally, Martin had the opportunity to work alongside university president Robert H. Henry, serving as his legal research assistant for two years.

While pursuing his law degree, Martin worked as a judicial intern for the Honorable Timothy D. DeGiusti of the United States District Court for the Western District of Oklahoma as well as for Justice Noma D. Gurich of the Oklahoma Supreme Court.

Born and raised in Oklahoma City, Martin currently lives there with his wife and puppy. In his free time, he enjoys spending time with friends and family, watching Sooner sporting events, traveling, and fly fishing.

Travis has joined Phillips Murrah’s Transactional Practice Group as an associate attorney where he represents individuals and businesses in a broad range of transactional matters.

Travis graduated cum laude from Oklahoma City University School of Law where he earned the CALI Award of Excellence, which is awarded to the student with the highest grade in the courses as determined by the professor for five of his courses (Contracts II, Legal Research and Writing II, Constitutional Law I, Oil and Gas Law, and Commercial Paper). He was also a member of the Oklahoma City University Law Review. While serving as a member of the Law Review, he authored a Note titled Judicial Discretion on Outcome-Determinative Legislation After Bank Markazi v. Peterson, which was published in 2018.

Travis was born and raised in Oklahoma City, Oklahoma, where he currently resides. He enjoys traveling, reading, attending sporting events, and spending time with family and friends.

Phillips Murrah announces new Director, Shareholder for 2018

Director Kayce L. Gisinger

Phillips Murrah is proud to announce Attorney Kayce L. Gisinger has been selected to join the Firm’s group of Directors, bringing the total number to 35.

“Working at Phillips Murrah has been such a positive experience, and I have so much respect for everyone here; not just in terms of the commitment to providing the highest level of service to our clients but also the equally outstanding commitment to community service work here in Oklahoma City,” Gisinger said. “I feel very honored to be part of such an amazing group and look forward to my new role with the firm.”

As a litigation attorney with extensive trial experience with beginnings at the Oklahoma County District Attorney’s Office where she tried over 100 jury trials, Gisinger’s practice has grown to include the defense of cases involving product liability, auto and trucking negligence, premises liability, medical malpractice, legal malpractice, employment law and insurance litigation.

“Kayce has an expansive career as an accomplished litigator, and the Firm couldn’t be more proud to have her join our group of Directors and Shareholders,” said Thomas G. Wolfe, President and Managing Partner. “We expect Kayce’s expertise and commitment to her clients to flourish exponentially in her new role at Phillips Murrah.”

A native Oklahoman, Gisinger was raised in Lawton and has resided in Oklahoma City for the past 30 years. She is active in her community and volunteers at various animal shelters and local food banks.

She officially assumed her new role on Jan. 1, 2018.

Phillips Murrah welcomes new litigation attorney

Mark E. Hornbeek represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Phillips Murrah is proud to welcome Mark E. Hornbeek to our Firm.

Phillips Murrah welcomed Mark to the Firm’s Litigation Practice Group as an associate attorney.

As a recent graduate of the University of Oklahoma School of Law, Mark earned the American Jurisprudence Award for Civil Procedure I, Torts I and Criminal Law. He served as Symposium Editor of the Oklahoma Law Review, was a member of the Phi Delta Phi Legal Honor Society, the Board of Advocates, and the Student Bar Association Board of Governors.

Mark also received the Welcome D. Pierson Award for excellence in the fields of Evidence and Civil Procedure, the Gene and Jo Ann Sharp Award for his contributions to the Oklahoma Law Review, the William T. and James Comfort Scholarship, and was selected as a Dean’s Leadership Fellow.

In his role at Phillips Murrah, Mark represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Phillips Murrah welcomes two new attorneys

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Attorney Hilary A. Hudson

Phillips Murrah is proud to welcome Hilary A. Hudson and Kendra M. Norman to our Firm.

Phillips Murrah welcomed Hudson to the Firm’s Litigation Practice Group as an associate attorney.

Hudson represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Kendra M. Norman

Attorney Kendra M. Norman

Norman has joined Phillips Murrah’s Transactional Practice Group as an associate attorney.

She represents individuals and businesses in a broad range of transactional matters.

Norman and Hudson are recent graduates of the University of Oklahoma School of Law.

Phillips Murrah adds new attorney

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Monica Y. Ybarra

OKLAHOMA CITY – Monica Y. Ybarra has joined Phillips Murrah’s Litigation Practice group as an associate attorney.

Ybarra represents individuals and privately-held and public companies in a wide range of commercial litigation matters.