The Impact of Media and Technology on the Litigation Landscape with Sabrina Mizrachi, Vice President and Deputy General Counsel of Litigation and Global Product Regulatory at Estée Lauder

In this episode, Gina Rubel goes on record with Sabrina Mizrachi, who is the Vice President and Deputy General Counsel of Litigation and Global Product Regulatory at Estée Lauder. Sabrina provides regulatory guidance, manages a comprehensive litigation portfolio, and protects the company’s brand integrity on a global level.

Gina Rubel: Before we started recording, we learned that we both practiced law in Philadelphia and that we’re both mothers of children who were born in this region. But you’re now working in New York. I had the pleasure to listen to you speak at the Women, Influence & Power in Law (WIPL) Conference by ALM in 2023. We were all in New Orleans, and you were a panelist during the session on hot topics in litigation. We are going to talk about that, and about the current litigation landscape.

What are some of the most significant changes you’ve experienced in the litigation landscape in recent years, particularly as there’s been a shift to remote depositions and hearings?

I think everybody’s pretty tired of hearing about COVID now, and that’s a good thing. But I think that the biggest shift we’ve seen in the past four to five years is that in the time period when the courts were closed and people were not doing anything in person, there was a very strong increase in the number of cases that were filed, investigated, or threatened. Not just for our company but industry-wide, there’s just more.

There was this period where plaintiffs sat around and had extra bandwidth and found new ways to use the system to advance the wants or the needs of their clients. Once we got back into the world, it wasn’t complete, but we have this great technology that allows us to have hearings and even trials in a remote way.

We got back to depositions, status conferences, hearings, and eventually trials by Zoom with this increased amount of litigation out there in all different areas, a couple of which I think are new areas of litigation that we haven’t seen too much in the past.

Gina Rubel: What are some of those?

Sabrina Mizrachi: I think there’s been an increase in privacy actions. There are some statutes around the country and regulations that require certain disclaimers when you use technology online, which was a very big thing during the pandemic, like virtual try-on technology for cosmetics where you can look at the lipstick color, hairstyles, or blushes. There are some very arcane regulations out there that have requirements when you do that, and they may or may not have been met. That has opened up a new area for litigation in that privacy space.

Gina Rubel: That’s fascinating. As a user of your products, I find it amazing because I love those things. I love to be able to see what something looks like on me, on my skin tone.

What are some of the challenges with remote depositions and hearings?

There are some procedural challenges with the technology itself – getting used to it and feeling comfortable in those situations. I have some funny stories about things that have happened that have been kind of problematic.

The biggest challenge is that you don’t have the ability to be in the same room with your adversaries, your co-counsel, your clients, the judge, the mediator, or the court reporter. While a lot of in-house lawyers talk about how much money they save not having to fly people around the country, there’s a downside to it, which is not developing those relationships of trust with your adversaries or codefendants – talking about their kids or whatever the case may be so that you can make the litigation itself less adversarial and conflictive, which is better for everybody. That way you can work out the problems, avoid motion practices, and mediate. When you know you have to leave to get on a plane or in a car or home for dinner, you’re going to push to get it done, as opposed to getting back on the phone the next day on another Zoom and sitting around for hours doing it that way. I think that there’s a motivation that comes from being in-person, and also a human aspect to it that we just can’t do on Zoom.

Gina Rubel: That’s so interesting. I originally was thinking about not being able to see body language or when opposing counsel was writing notes, or, if you’re in a jury trial, the way people nod, smile, or shake their heads. I didn’t think about how we used to use time to our advantage. The day was ending. You were running out of the courtroom and time is money – can we get this settled today? The courtroom steps settlement, as you will. I never really thought of that because I no longer litigate, so that’s a fascinating point that you make.

How do you use these tools to your advantage?

There’s a cost savings to it. If you already have a relationship and you need to schedule something like an expert deposition, you can use that to your advantage. It does create a lot of efficiencies for us, both financially and physically, just not having to be on the road and on a plane and away as much if you have the flexibility to pick and choose in those circumstances.

I also think that sometimes when things are tough, whether it be in mediation, negotiation, or a deposition with a sick plaintiff in an injury type of case, it gives you the opportunity to allow the plaintiff to have his or her time to be deposed. It allows the defense to have their time to depose the plaintiff without being invasive into their home or their hospital.

Most big companies have these personal injury cases come up, and it can be emotionally difficult for everyone involved. Having that camera instead of being in-person can give the participants a little bit more grace and dignity. I think that’s helpful.

What do you expect of outside counsel? How do you want them to show up, and what makes them most valuable to you?

It’s the partnership. I have spent the past 13 years thinking about this since I went in-house.

Our goals as an in-house legal department and the goal of the law firm are actually in direct conflict. Everybody may want to win against the adversary, but the reality is that the law firm’s goal is to make money, and they make money by spending their time. Our goal is to spend the least amount of money possible while still getting good results. That’s direct conflict right there. My expectation is to have that trust right at the beginning to understand, these are my expectations and my goals. This is my budget and these are the objectives for the piece of litigation or the advice that I’m seeking. I want to be able to have that open communication, so that when a conflict does arise between the law firm and the in-house legal department, you can have a conversation about it.

You can say, “You did something that didn’t meet my expectation. Can you do it a different way?” It’s an adult-to-adult communication as opposed to a parent-child communication where it’s disciplinarian. That partnership is the most important thing of all.

How have you seen the use of media and social media platforms impact the perception and dynamics of legal matters at Estée Lauder?

The biggest way that happens is that if you’re going to participate in a jury trial, you can pretty much be sure that at least half, if not most, of your jurors will have seen something about the issue in social media or in the media.

Information is so available at this point in time. You’re getting news alerts on your phone, you’re scrolling through Instagram, and there are lots of ads. There was recently a verdict in a Philadelphia court that was over $2 billion against one company for one person, and most people will have heard about that because it’s about a product that’s out there in the world that’s very visible.

There’s a lot of stuff about baby powder. There’s a lot of stuff about other kinds of cancers in California with Prop 65. It comes up on social media with people’s opinions, which now are free to be put out there in the world, advertisements, and access to news.

When you have a pool of jurors come into a courtroom, they’re very likely to have seen something about your issue, if it’s a big enough issue. That means that their opinion is probably predetermined, or at least leaning one way or the other before they even hear anything about the evidence.

I think that social media makes it very difficult to have an unbiased juror, and that’s the way I see it the most. It makes it harder to defend yourself when the court of public opinion is already kind of biased against you.

How do you handle the media? Do you have policies around media as it relates to litigation?

For all the companies I’ve ever worked for and all the clients I ever worked for when I was outside counsel, there’s always been the policy that we do not comment on active litigation. We don’t comment on a pending case. I’ve had verdicts and resolutions in the past where we have. Companies that I’ve worked for, not this one, have commented post-verdict on something.

I don’t see a way for us to have that influence as defendants in an industry that’s currently selling products to consumers to take a position on these things. It’s so delicate and sensitive, and all we can say is we don’t comment on it or we’re defending the case. It’s so generic that if you think about human beings, they’re not comforted by that. The answer is, I don’t have a good answer. We don’t know what to do other than to be as honest but quiet about a conflict as possible.

Gina Rubel: If you think about the rules of professional conduct, Rule 3.6 says you shouldn’t try your matter in the media anyway. What we always tell clients is to defer to Rule 3.6. Under the rules of ethics, we can’t try our case in the court of public opinion. We’re not going to share anything until after litigation and we might not share anything then either. That’s a perfect answer, by the way.

Sabrina Mizrachi: I love being told that my answer is perfect when I’ve said I don’t know.

Gina Rubel: That’s integrity, and that’s exactly what the media needs: people with integrity to say, “This is just not something we’re able to speak about. We’re trying it in the court of law.” That is a perfect thing to say when the firm or company has a policy against it.

Given the ongoing evolution of technology and media trends, what advice do you have for legal professionals or outside attorneys who are looking to stay ahead of the curve and effectively navigate the landscape, especially in litigation?

It’s another one where I’m just not sure. I just don’t know what the right answer is there, because I think it can go in different directions, and you may have seen that from your point of view as you were an active litigator before but you’re still dealing with litigation now. It’s hard to have uncertainty when it comes to these kinds of things.

Gina Rubel: I did not practice in the age of social media. It was a very different landscape and we had specific tools that we used to read the media, but it wasn’t being shared online. There was no such thing. Are you in-house keeping an eye on what people are saying on social media and in the media, or do you expect your outside counsel to do that? Or does it depend on the situation?

Sabrina Mizrachi: I do, but I think it’s both. I have multiple Google alerts in my own Gmail account. We also have a large communications department, and they alert us to things that may be relevant to active litigation or threatened litigation. For whatever we have outside counsel assigned to, we would also expect them to do it. We recently settled an ERISA case that was in the media, and it came up on my Google alert. I got it from my in-house communications people and the outside law firm sent it to me. It’s very low risk that I’m not going to see something relevant to the company when it comes to litigation.

Gina Rubel: What I’m hearing is we’re keeping our eye on it from every perspective, and in that case, your outside counsel did their job because they need to keep an eye on it, and oftentimes it’s like, “Oh, it’s over. We’re done now. Move on.” Knowing that outside counsel is keeping an eye on the court of public opinion to best serve you as a client without overbilling or getting into that conflict of who’s doing what is really important.

Are you aware of any ways that Estée Lauder is using generative AI to further its brand?

I know that they’re working on it, and I know that there are some things happening with our tech people. In legal, I’m not working on any of that right now, but I know that it’s happening around me and I do think it’s something that people are absolutely going to have to pay attention to because it is out there.

If a law firm could use generative AI in a safe way to cut down their costs, is that something you would want them to do and for you to be able to test to make sure it’s right for your company?

I’m very open-minded about things that relate to cost savings because one of my objectives is to keep our costs down. I just think that there are a lot of caveats to that. I’m right at that age where I’m skeptical about technology, but I’ve lived through a lot of it. I still write notes with a pencil and paper. I’m not great with technology, but I understand that the people around me are. I’m open-minded about it. I’m just skeptical.

Gina Rubel: I think you and I are in the same boat there. I mentioned to you earlier that I started practicing law when we didn’t have email yet, which is kind of crazy to me. I remember when my dad required me to have a cell phone because I was driving long distances on weekends, and the cell phone was in a bag that plugged into your car lighter. Technology has changed, but it’s also changed the way we practice law. It’s changed the business of law, how we do things. It’s changed relationships and strategy. These are all things that our listeners are going to need to think about as they move forward in their practices.

Sabrina Mizrachi

Learn more about Estée Lauder

LinkedIn: https://www.linkedin.com/in/sabrina-mizrachi-3686aa78/