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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)

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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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Texas Lawyer: Mid-Market Strategy to Achieve Cost Reductions that Clients Seek

On June 14, 2020, Mark E. Golman a Director in Phillips Murrah’s Dallas office, wrote the following article that was published in the Analysis section of ALM/Law.com’s publication, Texas Lawyer:

Mid-Market Strategy to Achieve Cost Reductions that Clients Seek

Legal industry surveys demonstrate the complexity of defining “value” in the legal industry. The exact meaning depends on who you ask, when you ask, and the nature of the circumstances. Fundamentally, the quality of provided services represents one significant indicator of value. However, clients view the cost of those services as an important component of value, which has specific and increasing importance during our current challenging economic times.

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Mark E. Golman helps clients achieve their strategic objectives and reduce risk in the areas of corporate law, finance and bankruptcy. Mark represents clients in the purchase and sale of businesses and assets, including purchases out of bankruptcy proceedings, financings and contract negotiations.

Informed by strategies that date back to the Great Recession of the previous decade, clients are understandably focusing on lowering their legal expenses and looking to mid-market law firms to achieve it. Simply put, it is a win-win – clients find more attractive billing rates by shifting Big Law work to mid-market firms, and mid-market firms are increasingly in a strong competitive position.

Prior to the pandemic crisis, our firm devised a strategy whereby major-market clients can achieve desired cost reductions while retaining the quality of a top-tier firm: location, location, location. Phillips Murrah is a 34-year-old firm headquartered in Oklahoma City. Two years ago, the firm opened its Dallas office to not only expand its footprint, but to also pass along substantial cost savings opportunities to clients as a result of lower comparative overhead costs.

As a result of this model, clients in Texas and across the country receive services from experienced shareholders whose billing rates are usually lower than those of first-year associates at large firms. Providing more experience at a lower billing rate improves efficiency and enhances value for our clients.

Of our more than 75 attorneys, six practice full-time from the Dallas office. Additionally, several of our Oklahoma City attorneys who previously practiced in Texas bring additional relationships and synergies to the firm. With Dallas as a prime example, we deliver a breadth and depth of service offerings as well as experienced attorneys at what amounts to bargain rates.

Since Phillips Murrah opened our Dallas office, more than half of our Oklahoma lawyers have worked on relationships managed by a Texas lawyer while each member of our Dallas office has worked on relationships managed from Oklahoma City. The collaborative opportunities provided by this low-overhead geography is accentuated by Oklahoma City being as close or closer to Dallas as Austin and Houston.

This strategy allows us to offer the best of both worlds to clients in Texas and beyond: top-tier legal services at a reasonable cost.

Mark E. Golman, a Phillips Murrah Shareholder, helps clients achieve their strategic objectives and reduce risk in the areas of corporate law, finance and bankruptcy. Mark represents clients in the purchase and sale of businesses and assets, including purchases out of bankruptcy proceedings, financings and contract negotiations.


Learn more HERE.

To contact Mark E. Golman, you can EMAIL or call 214.434.1919.

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Reprinted with permission from the June 14, 2020 edition of the Texas Lawyer © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Wolfe reflects on Law Firm growth in Dallas market for Texas Lawyer article

Thomas G. Wolfe, Managing Partner at Phillips Murrah law firm, was interviewed by Brenda Sapino Jeffreys for an article for Texas Lawyer on Law.com, giving insights on the Firm’s venture into the Texas legal market and on business strategies the Firm has found successful in Dallas.

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

Read more below:

What do you view as the two biggest opportunities for your firm, and what are the two biggest threats?

For Phillips Murrah, our biggest opportunity is easy: TEXAS.  We opened our Dallas law firm about a year-and-a-half ago, and as a new entrant to the Texas legal market, we see virtually unlimited opportunities to gain clients, expand existing relationships and add top talent. Over the past 18 months, we have grown our Texas office from one full-time lawyer to five while increasing the quantity of work being handled for Texas-based companies more than tenfold. While much of that work is for new clients, we are also providing an expanding range of service to existing clients based in Texas and elsewhere.

The second opportunity for the firm is the ability to provide existing Oklahoma-based clients with niche services from Texas-based lawyers. In some cases, there are only a handful of Oklahoma lawyers in a niche practice while the pool of practitioners in Texas is much larger.

While Texas presents a huge opportunity, the size of the legal market and the number of competitors also serve as a threat. As a roughly 75-lawyer firm, we cannot chase every opportunity. We must remain focused and chose carefully.

Growth also presents a challenge to our firm culture, which has been a cornerstone for our success. As Phillips Murrah added, and then added to, a second office, we have worked diligently to include Oklahoma lawyers on teams serving Texas-based clients and vice versa. Since opening in Dallas, half of our Oklahoma lawyers have worked on relationships managed by a Texas lawyer while everyone in our Dallas office has worked on a relationship managed from our Oklahoma City headquarters. Fortunately, Oklahoma City is as close to Dallas as Austin and much closer than Houston.

The full article is exclusive to Law.com subscribers. Click here to view the full article.