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American Bar Association


A Practical Approach to Getting Defense Costs Covered

By Nancy Sher Cohen, Shawn Ledingham Jr., Carol Gerner, Elizabeth Hanke, and Stephanie L. Sciullo[1] – December 4, 2013

In recent years, concern has grown regarding coverage of defense costs. This article discusses the practical steps that policyholders can take to prepare their defense cost data for inevitable coverage disputes. This practical approach will help policyholders and insurers resolve defense cost disputes. Precise defense cost data enable the parties to conduct well-informed, principled negotiations and enhance their decision-making capabilities.

To prepare for dispute resolution and negotiation with insurers, policyholders should evaluate their legal matters early for potential insurance coverage disputes, get granular with their defense cost data, and prepare the data for easy analysis in the future.

Scope Legal Matters for Potential Insurance Coverage Disputes as Early as Possible
The adage “an ounce of prevention is worth a pound of cure” is certainly true when it comes to getting defense costs covered. The goal is not to be “right” on the substance of the coverage dispute. Instead, the objective is to spot which issues are likely to be disputed and how those issues are reflected in the data. Policyholders must scope for potential coverage disputes up front so that they have the opportunity to make deliberate, informed decisions on how to maintain defense cost data.

Policyholders will want to think critically, perhaps in consultation with coverage counsel, about what potential coverage disputes may arise. This analysis is informed by insurance policies and applicable case law, insurers’ billing guidelines, and trends in insurance coverage law. Some specific areas that may generate disputes are identified below.

Potential dispute source: Insurers’ billing guidelines. Billing guidelines are one mechanism insurance carriers employ to standardize the defense costs they ultimately pay over various policyholders. Billing guidelines outline a carrier’s standards for many different issues. They often dictate standards for billing rates, seniority of attorneys performing certain work, work to be performed by non-attorneys, the type and amount of acceptable discovery and motion practice, the methods and amount of legal research, and the level of detail required in defense counsel’s billing records. Billing guidelines may also require prior carrier approval before propounding discovery, preparing motions, or conducting research. To the extent that billing guidelines reduce costs without affecting defense counsel’s substantive legal strategy or confidentiality obligations, the imposition of such guidelines is not, itself, impermissible.[2]

Policyholders may wish to deviate from these guidelines for good reason. Billing guidelines do not alter a carrier’s obligations under the original insurance policy when they are not integrated into the insurance policy. As a result, most carriers’ billing guidelines may not dictate hard-and-fast standards for what defense costs are legally reasonable or covered. Furthermore, the insurer’s billing guidelines must not interfere with defense counsel’s ethical obligations to its client, the insured, as the California Court of Appeal noted:

Under no circumstances can such guidelines be permitted to impede the attorney’s own professional judgment about how best to competently represent the insured. If the attorney’s representation is to be limited in any way that unreasonably interferes with the defense, it is the insured, not the insurer, who should make that decision.[3]

Some carrier-imposed guidelines are so presumptively in conflict with defense counsel’s ethical obligations to its client that counsel may be found to have violated those ethical obligations simply by agreeing to the guidelines. For example, the Montana supreme court has held that counsel violates its ethical duties by submitting itself to a carrier’s requirement for prior approval before scheduling depositions, conducting research, or preparing motions.[4] If defense counsel believes its ability to represent the policyholder will be impaired materially by a carrier’s billing guidelines, defense counsel should advise its client, the insured. The policyholder should check applicable law, inform the carrier as early as possible, and attempt to resolve the issue to the satisfaction of all involved.

Billing guidelines can also raise ethical dilemmas regarding counsel’s obligation to maintain its client’s confidences. Many billing guidelines require the sharing of confidential information, such as detailed billing records, with an auditor employed by the insurer. Auditors are not the agents of defense counsel, nor are they necessary for the representation of the insured; rather, they are agents of the carrier.[5] Both the courts and American Bar Association have long recognized that disclosure of confidential information to insurance auditors, without the informed consent of the insured, violates client confidences.[6] Indeed, the disclosure of confidential material to even the carrier may violate an attorney’s ethical obligations, if doing so affects a material interest of the insured.[7] Still, these issues are murky, and a coverage dispute may arise if a carrier is denied the information it claims to require. Overall, a carrier’s billing guidelines are the key indication of what costs and activities it believes are reasonable and reimbursable; they are one of the most critical documents to consult during the initial scoping exercise. If a policyholder chooses to deviate from these guidelines, even if it has sound legal and ethical grounds, it must be prepared for a future dispute.

Potential dispute source: Self-Insured retentions. A policyholder may find itself bearing defense costs if its policy contains a large self-insured retention (SIR). As the Southern District of New York explained, “[an] SIR differs from a deductible in that a SIR is an amount that an insured retains and covers before insurance coverage begins to apply.”[8] The majority view is that an insurer has no duty to defend a case until the SIR is met.[9] Instead, “the insured assumes the obligation of providing itself a defense until the retention is exhausted.”[10]

Many courts have held that SIRs may not be exhausted by payment of defense costs.[11] This could result in even small SIRs impeding defense-cost recovery until after a settlement or judgment exhausts the SIR, at which time there might not even be any ongoing defense costs.

Some courts, however, have held that defense costs do exhaust a policy’s SIR.[12] Additionally, some SIRs provide the policyholder with a right to post-judgment/post-settlement reimbursement for the carrier’s pro rata portion of the defense costs.[13] For these reasons, it is important that a policyholder maintain clear records of defense costs incurred that may contribute to exhaustion of the SIR or may be, at least partially, reimbursed. A recent case in Texas federal court shows the risks of failing to do so. Defense counsel in that case conflated for billing purposes the underlying action and the insurance recovery action. The court held that although costs incurred in defending the underlying action did count toward exhaustion of the SIR, the carrier’s duty to defend was not triggered unless the insured could provide a breakdown showing the costs and fees related only to the underlying claim.[14]

The primary factor in the determination of the effect an SIR has on the insurer’s duty to defend will be the policy language. Policyholders with SIRs will want to analyze this issue to determine whether defense costs may be their responsibility for the entire lawsuit or partially reimbursable. If some portions of costs are reimbursed once the SIR is met, defense cost data will need to be maintained in a way to prove exhaustion.

Potential dispute source: Mixed lawsuits with covered and uncovered claims. A lawsuit may involve both covered and uncovered causes of action. For instance, activities related to punitive damages or involving allegations of intentional behavior may not be covered and are often brought alongside other covered causes of action like negligence.The obligation to defend under a duty-to-defend policy is readily understood and its requirement is clear—the insurer must afford a defense for covered as well as uncovered claims if the latter are intertwined with covered claims. Nonetheless, disputes may arise over whether the covered and uncovered claims are “intertwined.”

Policies not containing a duty-to-defend provision may present additional issues. Directors’ and officers’(D&O) liability policies, for example, typically contain a duty to pay for losses (including defense costs) instead of a duty-to-defend provision. One court examined a D&O policy that clearly allowed the insurer to pay only the defense costs it believed were covered until a different allocation was negotiated, arbitrated, or judicially determined.[15] The court ruled the insurer was not required to contemporaneously pay all of insured’s defense costs up front, where the insurer claimed that the lawsuit involved both covered and uncovered claims. Instead, the policyholder had to seek recoupment after the parties allocated (or a court decided) which costs pertained to covered claims.

Under these scenarios, disputes may arise regarding which costs are allocated to covered and uncovered claims. Policyholders will want to review a lawsuit to determine whether it involves potentially uncovered claims. They will want to implement a billing protocol that ensures each time entry clearly reflects whether it pertains to covered claims, uncovered claims, or both.

Potential dispute source: Inconsistent policy terms in follow-form excess coverage. To ensure continuity up the “tower” of insurance coverage, excess insurance policies typically have a “follow-form” provision that incorporates the terms of the primary policy within the tower. By design, the terms and exclusions of the primary policy establish coverage not only for that policy but also for all other policies that sit above it in the tower. However, excess insurers may attempt to avoid coverage by invoking terms in their excess policies that are inconsistent with the underlying primary policy.

While courts will recognize the clear terms of an excess policy, even if they conflict with the underlying primary policy adopted by a follow-form provision,[16] courts are reluctant to let the follow-form provision be rendered meaningless by inconsistent policy terms. To this end, courts strictly construe the follow-form provision against the insurer if either the follow-form provision or an alleged inconsistency is ambiguous.[17] For example, a New Jersey federal court dealt with a follow-form provision that read as follows: “It is agreed that such coverage as is afforded by this policy shall apply to occurrences covered by the terms and conditions of [the underlying] Policy.” The court held that the policy was ambiguous as to whether the pollution exclusion clause in the excess policy applied, rather than the pollution exclusion clause in the primary policy. The court construed the policy against the insurer, forcing the carrier to follow the form of the primary policy and provide coverage.[18]            

The issue of inconsistent policy terms in follow-form coverage may be difficult to identify during the scoping phase. Understanding current trends in coverage litigation and recent rulings may help a policyholder spot “hot topics” in policy language and where these disputes may arise.

Potential dispute source: Moving up the coverage tower. Even if the current relationship is sound, the policyholder should give thought to maintaining defense data and a claims database that can be used to help resolve any future disputes with excess carriers. A policyholder can maintain all of its records in-house, or it may want to ensure that it has access—and will have access in the future—to the same data the policyholder would desire if the policyholder itself was defending claims. This holds true even in instances where the policyholder’s primary and excess carriers are the same. The distinction between primary and excess may seem inconsequential when the carrier is paying, but it may become important to carriers up the tower.

Get as Granular as Practicable (Not Possible) with Defense Cost Data
Once a policyholder scopes its covered litigation for potential disputes, it must consider how to maintain defense cost data in a deliberate, informed manner. Policyholders may desire to memorialize their thought process in a file memo or in instructions to their defense counsel; keep in mind that such documents may become discoverable in future coverage disputes.

For purposes of this article, “defense cost data” refers to invoices and the time entries, billing codes, rates, and other data contained on invoices. It may also pertain to supporting documentation.[19] Depending on the nature of the anticipated coverage dispute, “getting granular” means keeping defense cost data in the smallest practical units. It may mean breaking down defense invoices into separate lawsuits. It may also involve breaking down separate lawsuits into distinct claimants or causes of action.

A policyholder often saves time and money—and reaches a better coverage outcome—by maintaining data in a granular manner informed by early scoping. It is always easier to aggregate data than it is to break data apart. For example, imagine a lawsuit has been separated into two distinct causes of action for invoicing purposes. Adding the two separately invoiced causes of action back together to form one lawsuit is an administrative task. It can be accomplished by most anyone with a calculator (or through an automated e-billing system report). In contrast, defensibly breaking apart invoices into smaller increments after the fact often must be done personally by the timekeepers who performed the work, relying on their memory of the tasks in question. As time passes, memory fades and this chore becomes increasingly more difficult. An expert may be retained for litigation purposes to divide invoices according to a model or formula, but it may be at considerable expense to the policyholder. Therefore, the expense and hassle of breaking apart data in the middle of a coverage dispute is often exponentially higher than maintaining data with some deliberate purpose at the outset.

This general principle is subject to two very important caveats. First, it is advisable to keep all defense data as granular “as practicable”—not as possible—because maintaining invoices at a more granular level undoubtedly places a greater administrative burden on the policyholder, its outside counsel, and its data storage capacities. For this reason, each additional level of granularity should have a cost-benefit analysis to it—what is the likelihood of a coverage dispute in general? Will it cost more to unwind the data later than to maintain the data this way in the first instance? What are the burdens to the outside counsel? What are the collateral costs—do we have data storage limits in electronic service provider contracts (or off-site storage contracts) that will be implicated?

While this cost-benefit analysis is influenced by the probability of a coverage dispute, it is not driven by the policyholder’s assessed strength of legal position. Unless a clean summary judgment sweep is achieved, eventually, the data will need to be cut in a different way than how they were initially tracked. Therefore, in addition to probability, the analysis also takes into account the up-front costs of maintaining data against the anticipated cost of a later change.

The second caveat is that a policyholder may need to monitor its invoices differently in the ordinary course of business. Total time charged may increase if more invoices are required, and such increases may be harder to spot. Policyholders should consider how to guard against this possibility. Defense counsel should be clearly directed on how to invoice for small amounts of time that may pertain to multiple matters (for instance, when a “.1 activity” relates to multiple cases, claims, or causes of action). Counsel also should be reminded that time cannot be cross-billed across invoices in a way that charges more time than was actually expended on an activity.

Finally, standard reports may be created to aggregate data across the more granular invoices to allow the billing to be viewed at different vantage points. The reports may aggregate defense cost data by law firm, matter (if multiple firms and vendors work on the same matter), jurisdiction (state, region, or both), subject matter, billing task codes, or other segments. These reports allow the policyholder to determine whether billing activity—which appeared reasonable in smaller increments—added up to far greater defense costs than at first glance. With the use of certain electronic billing and matter management systems, once these reports are created, they can be run at predetermined intervals with little or no additional time or expense. They will aid in day-to-day budget management.

Be Prepared to Unwind the Data
Inevitably, the data will need to be looked at in a different way than they were originally tracked. It is difficult to predict how a court will rule or what compromise the policyholder and their insurer may negotiate, but it is wise to be prepared with an exit strategy. Therefore, a policyholder should maintain data in a way that allows for easy future modification.

One court’s ruling on a plaintiff’s motion for attorney fees is illustrative:[20] The court awarded fees but reduced or eliminated fees for (1) duplicative work pursuant to an acceptance of a defense offer of judgment that included “all reasonable attorneys fees and costs”; (2) excessive work; (3) tasks performed by attorneys that could have been completed by paralegals; (4) inadequate time entry descriptions; and (5) clerical tasks. Although billing guidelines were not specifically at issue in the case, these five areas correspond to common billing guideline provisions. Faced with similar disputes, a policyholder whose data allow it to calculate the defense costs under various assumptions is better positioned for recovery. Of course, more detailed time entry descriptions may also help the policyholder refute accusations that certain work was duplicative, excessive, or performed at unjustified rates.

Think of the defense data like building blocks to be maintained in clean, logical chunks so that the data can be stacked and restacked as circumstances require. There are a number of different reasons why the data may need to be reconfigured.

First, the ability to isolate and reconfigure the defense cost data will dramatically increase a policyholder’s ability to conduct well-informed, principled negotiations. It will allow the impact of disputed issues to be quantified in dollars and cents. This provides a greater understanding of the cost of compromising on those issues. With a data-informed view, it may become clear that some issues have more emotional appeal than dollar value. In the best case, agreements may be reached more easily if the policyholder and carrier are not as far apart monetarily than it may have otherwise appeared. In the worst case, the true value of each dispute will be known, and the policyholder and carrier will be able to make settlement decisions in a data-informed manner.

Second, the ability to isolate and reconfigure defense cost data may also save money and time once a compromise has been reached with an insurer or a court ruling has been issued. It will allow for a quick calculation of what is owed so that the policyholder can substantiate the recovery it is due under the new parameters.

Using the example above, when faced with a dispute that certain work performed by attorneys could have been performed by paralegals, the parties may wish to calculate costs by running selected time entries at (1) actual billed attorney rates and (2) assumed paralegal rates. These calculations will provide a range of recoveries available on that issue and allow the parties to take more informed positions in negotiations. Once the parties agree on resolution, or one is provided by the court, the policyholder will be able to calculate how much it is owed under the new timekeeper rate for the disputed entries.

Use Technology to Collect Defense Data and Track Legal Costs
Technology and electronic billing systems can be used  to manage and track defense costs proactively.

Institute clear billing practices. If certain defense costs are tracked at the granular level of a claim, claimant, or lawsuit, then general billing codes may be used to record the information. Clear guidelines as to what goes into the general codes will help to minimize future disputes. If protocol dictates that time initially be billed to a general code for new claims, it must be clear to all counsel and their billing departments when the claimant or lawsuit-specific matter will be created and used. In the general code, the lead plaintiff or docket number should be captured or otherwise flagged so that if a specific matter is later created, time that was billed prior to its creation can be identified and moved appropriately. Both policyholders and insurers will want to communicate clearly to all firms which tasks should be billed to general matters and which tasks necessitate their own matters.

Often times, multiple firms or vendors are working on defense of the same matter. Not only must these firms be keeping their data at the communicated granular level; they must do so in a way that coordinates and integrates with other vendors’ data. National coordinating counsel or a claims administration firm can develop a consistent numbering or naming system for this database that can link to all the defense costs. This system is all that is required for claim-based billing. On a very large case, it is helpful for multiple firms to use the same naming or numbering conventions. This makes it easier to match the data in a situation where the sum of all costs must be calculated.

Policyholders or insurers may wish to require task-based billing codes. If so, the number and types of codes should be selected carefully; often a handful of relevant task codes that are mapped to specific expected activities work much better than 25 or 50 different codes. Precise definitions and examples of each must also be communicated—one person’s “research and analysis” is another person’s “case strategy.” “Self-audits” may be conducted to ensure that all parties are properly coding.

In the case of alternative billing arrangements, policyholders and insurers may nonetheless wish to require shadow time entries. They will be reviewed by the carrier to confirm that the work is for covered claims and complies with any billing guidelines.

When multiple policyholders are sharing defense costs, policyholders should also consider tracking total expenses. If defense counsel bills a policyholder only for its individual portion, the total amount spent is unknown to both the policyholder and the carrier. To allow for easy reconstruction, this allocation between codefendant policyholders should be integrated into the data—not in notes on the bottom of an invoice or in a cover letter.

Use software to control and monitor aspects of underlying defense. Using third-party litigation management software not only helps monitor day-to-day activities but also helps maintain defense cost data in the event of a coverage dispute. Electronic systems allow data to be viewed in ways that are not possible with a hard copy or PDF file. Many of these systems are not expensive and can pay for themselves by allowing for easy audits and enforcement of billing guidelines.

Still, it is not possible for every policyholder to use a third-party billing system. If a third-party billing system is not being used, there are still steps the policyholder can take to preserve its data electronically. All electronic time entry systems used by defense counsel can export data. At set intervals, defense counsel can easily export invoices to a hard drive or onto a CD for the policyholder’s storage. Even if a policyholder’s defense counsel uses different programs, the extracted data can later be aggregated more easily than paper or PDF files. To do this, it is not necessary that each firm have the same billing system, but they do need to track the same fields and have the same naming conventions.

Disputes are inevitable, but by maintaining defense cost data in the practical manner described in this article, policyholders and insurers are better positioned to reach resolution.

Keywords: litigation, insurance, defense costs, data collection, billing guidelines


[1] The opinions expressed herein are those of the authors and do not necessarily reflect the views of their respective firms or companies or their respective clients. This article is for general information purposes and is not intended and should not be taken as legal advice.

Nancy Sher Cohen is co-head of the Insurance Recovery & Counseling Group at Proskauer. She was previously co-head of the Insurance Coverage group at Heller Ehrman, where she was also the managing partner of the Los Angeles office. Nancy has been lead counsel in the prosecution of many insurance coverage cases against insurers, including claims by the lender to the World Trade Center towers, Holocaust survivors’ claims involving multiple carriers’ failure to pay life insurance benefits, first-party claims involving business interruption, and third-party claims involving reimbursement for environmental liabilities. She has recovered well in excess of $1 billion against carriers.

Shawn Ledingham Jr. is an associate in the Litigation Department of Proskauer and a member of the firm’s Insurance Recovery & Counseling Group. He represents clients facing environmental liability in the litigation of underlying liability claims, as well as subsequent insurance coverage and cost recovery actions. Shawn has also represented policyholders in coverage disputes arising out of their carriers’ denial of first-party benefits.

Carol J. Gerner is special counsel in the Chicago office of Sedgwick, LLP. She represents London, Bermuda and domestic insurers as monitoring and coverage counsel on a broad array of insurance matters, including directors and officers, professional and employment practices liability issues. She is a member of the American Bar Association and other state, local and national associations.

Elizabeth Hanke is a vice present at KCIC. She specializes in bringing relational database technology to solving complex disputes in litigation and settlement. Ms. Hanke is an expert in insurance allocation modeling and is able not only to deploy technology with an industry-leading level of sophistication but also to model results for large datasets in real time. Her long experience, combined with technological processes, make her a trusted advisor in settlement and litigation. In addition, Ms. Hanke is a founding and board member of ABA’s Women in Insurance Network (WIN).

Stephanie L. Sciullo is associate general counsel for MSA, a publicly traded global manufacturing company based in Pittsburgh, Pennsylvania. She is responsible for all aspects of MSA’s litigation portfolio. Her expertise includes nationwide coordination of complex product liability claims and associated insurance recovery efforts. Since joining MSA, Ms. Sciullo has implemented several programs resulting in a million-dollar cost savings and improved quality of defense. In 2012, she led MSA’s “Lean Legal Initiative,” applying Lean manufacturing principles to mass litigation management.

[2] Pepsi-Cola Metro. Bottling Co. v. Ins. Co. of N. Am., Inc., No. 10-2696, 2010 U.S. Dist. LEXIS 144401, at *32–34 (C.D. Cal. Dec. 28, 2010).
[3] Dynamic Concepts v. Truck Ins. Exch., 61 Cal. App. 4th 999, 1009 n.9 (1998) (emphasis in original).
[4] In re the Rules of Prof’l Conduct, 299 Mont. 321, 335–39 (2000).
[5] In re the Rules of Prof’l Conduct, 299 Mont. 321, 345–46, 339–47; ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 421, at 8–9 (2001).
[6] In re the Rules of Prof’l Conduct, 299 Mont. 321, 339–47; ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 421, at 8–9.
[7] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 421, at 8.
[8] In re Sept. 11th Liab. Ins. Coverage Cases, 333 F. Supp. 2d 111, 124 n.7 (S.D.N.Y. 2004).
[9] See, e.g., City of Oxnard v. Twin City Fire Ins. Co., 37 Cal. App. 4th 1072, 1077–78 (1995). For the contrary view, see American Safety Casualty Insurance Co. v. City of Waukegan, 776 F. Supp. 2d 670, 699–700 (N.D. Ill. 2011) (holding that policy provision stating that the SIR “shall be paid by the insured prior to any obligation on the part of this Company” was too vague to shield insurer from duty to defend claims prior to exhaustion of SIR).
[10] U.S. Fire Ins. Co. v. Scottsdale Ins. Co., 264 S.W.3d 160, 173 (Tex. Ct. App. 2008); but see Cooper Labs., Inc. v. Int’l Surplus Lines Ins. Co., 802 F.2d 667, 676 (3d Cir. 1986) (“It is clear enough that if the judgment sought against the insured is one that the carrier would be required to pay, then the duty to defend exists.”). Of course, the insurer is certainly free to fund a defense where doing so may limit its exposure to indemnify liabilities in excess of a policyholder’s SIR. See Admiral Ins. Co. v. Grace Indus., 409 B.R. 275, 279–82 (Bankr. E.D.N.Y. 2009) (holding that, while the insurer had “no obligation . . . to pay a penny before a claimant had been awarded” the SIR amount, the insurer could choose “to save itself money by paying what would have been [the insolvent policyholder’s] obligation [to defend] rather than playing out all of the litigation cards with their attendant risks”).
[11] See, e.g., Axis Specialty Ins. Co. v. Brickman Grp. LTD, 756 F. Supp. 2d 644, 651  (E.D. Pa. 2010); but see Mo. Pub. Entity Risk Mgmt. Fund v. Investors Ins. Co. of Am., No. 05-4386, 2007 U.S. Dist. LEXIS 28243, at *13–14 (W.D. Mo. Apr. 17, 2007) (holding that defense costs exhausted SIR).
[12] Energy Res., LLC v. Petroleum Solutions Int’l, LLC, No. 08-656, 2011 U.S. Dist. LEXIS 91829, at *39–43 (S.D. Tex. Aug. 17, 2011).
[13] See Gen. Star Indem. Co. v. Super. Ct., 47 Cal. App. 4th 1586, 1590–91 (1996).
[14] Energy Resources, 2011 U.S. Dist. LEXIS 91829, at 41–43.
[15] Commercial Capital Bankcorp., Inc. v. St. Paul Mercury Ins. Co., 419 F. Supp. 2d 1173 (C.D. Cal. 2006).
[16] See Home Ins. Co. v. Am. Home Prods. Corp., 902 F.2d 1111, 1113–14 (2d Cir. 1990).
[17] See, e.g., Johnson Controls, Inc. v. London Mkt., 325 Wis. 2d 176, 193 (2010); Associated Wholesale Grocers v. Americold Corp., 261 Kan. 806, 822–26 (1997).
[18] Hatco Corp. v. W.R. Grace & Co., 801 F. Supp. 1334, 1355 (D.N.J. 1992).
[19] For instance, with a large-scale document review, a policyholder may consider how to maintain work product from the review to substantiate invoiced costs.
[20] Zhang v. GC Servs., LLP, 537 F. Supp. 2d 805 (E.D. Va. 2008).