Before looking at database solutions I thought you may like to have your appetite whetted by knowing something of the content of future posts. I will be dealing with a number of eDiscovery topics including searching; glossary of terms or jargon; sizes and volumes; the effect of proportionality; the rules of eDiscovery in SA and other countries; competition and eDiscovery; Data Protection and Privacy; information governance; recent relevant reported cases and other discussions as they arise. Feel free to contact me with your comments as well as anything specific you may wish me to consider.
In my previous posts we have looked at processing paper and electronic documents and having them ready for review. In this post I will deal with how technology materially aids lawyers, and therefore their clients, by helping to ignore irrelevant documents; find relevant ones; prepare for discovery; and, if necessary trial.
I will begin with the comment from a UK litigation lawyer that I know when she described eDiscovery as “..about being clever with the way you do document reviews. It’s about picking the right search terms, using a good provider and having a proper hosting platform.” This is a really good practical description and I will break it down into component parts, but I will begin at the end!
What is a hosting platform for these purposes? In very simple terms we use a litigation database software solution which carries all of the images that have been processed and, through its various functions and features, allows lawyers to search for specific documents and review them. The hosting of the particular solution is usually handled by a service provider, who provides a secure hosting site with individual log-in credentials to each specified user/reviewer. In the past many law firms licensed the software solution themselves and administered it in-house, and some still do, but the industry has changed so much that fewer law firms globally opt for in-house installation nowadays. I know a number of UK law firms who invested huge sums 10 or more years ago, and have now given up in favour of external hosting case by case. One of the reasons is that systems have changed so much and new ones have hit the market so the solution that was purchased 10 years ago, despite upgrades, is now out of date. Furthermore, it is not just about buying software. A law firm needs an IT infrastructure to run it which means hardware and people. Also, as volumes of data have increased, the data storage requirement reaches almost frightening levels and all of this has to be paid for by clients. I recall when I set up a company in the UK 11 years ago I told IT I must have a terabyte of storage. When I left last year it had grown to 38 terabytes! My view is that law firms also found it difficult to deal with ROI for such systems and increasing their hourly rates was not an easy sell. External hosting by a service provider takes away all of this pain and cost to a law firm and they simply pass on the monthly costs to their clients for each case. It is also important to remember that considerable skills are required to administer these complex software solutions, and service providers possess experienced people, many of whom are certified in the use of their particular system.
In the 15 years that I have been in this industry I have seen solutions and people come and go, as well as many acquisitions and consolidations. I have seen fantastically popular solutions be overtaken by new ones with better or more modern functionality. Now there are so many solutions (most of them being manufactured in the USA) I cannot name them all but I am fortunate to have contacts at most of the software manufacturers and service providers. I do not wish to favour one above the other but I can say independently, that right now a product called Relativity is the “flavour of the month” globally. I will outline some of the features, not just of Relativity but litigation database solutions in general.
Firstly, let us look at a situation where such a solution is not being used and lawyers are investigating their case where all the data and documents are in paper format. A lawyer would want it all to be categorised in certain ways depending upon the type of case. For example he may require all of the documents obtained from each individual (custodians) separated from the others then organised in chronological date order. He may then wish to have them separated by types of documents, e.g. correspondence by letter or email, reports, spreadsheets and so on. He may also need to have them further divided in order to see if there were other individuals with whom this custodian had frequent communication. Imagine how long all of this would take, depending on volume, and how many people would it involve. Imagine also the difference if these tasks could be done with a few keystrokes, in minutes, more accurately. This is what a system can do and frankly is only the start of it, but already you can see a big difference in the manner and timeframe in which a lawyer starts to understand his case.
Depending on volume, early decisions can be made about how these documents will be reviewed. How many custodians are there and how many documents and of what type relate to each? Are there any documents of different languages, and if so what languages, and how many documents in each language? If the lawyer knows (which he should!) a date range in which this matter is relevant, then, are there any documents which fall outside this date range, which therefore could be set aside and left for later review if necessary? I say again, how long would all this take if done manually, and remember the client is paying for the lawyer’s time! Bluntly, this is “push of a button stuff” for the likes of Relativity and other solutions. This type of work, and its results are often referred to as Early Case Assessment. Pausing there, I have to say that I have always shared the view of many in my industry that the description is incorrect and it really should be Early Data Assessment. It is interesting that many people I know who have this opinion are people who have actually worked in law firms handling cases. Anyway, the whole point is that a lawyer can go back to his client very very quickly, telling him that he has already undertaken an Early Data Assessment, give his client initial advice on what he has seen, and more importantly set out how the case will need to be investigated and dealt with, as well as estimating the costs and timeframe. I must be careful not to stray too much on the topic of MONEY as it is a subject for a post in its own right under the general heading of proportionality and the cost of discovery.
The next stage is to begin looking at the content of documents and determining relevance or otherwise, any privileged documents, and really looking at the strengths and weaknesses of the case, preparing for discovery as well as Case Management Conferences.
Using technology short-circuits all of this work and arranges the review of the documents in a more timely and efficient manner. The reviewing team can be better instructed about what each member is looking for, share relevant findings with others in the team and isolate what I call “hot docs” for review by the head of the case. Relativity and other solutions have remarkably fast and accurate searching techniques which can find specific documents or groups of documents in a heartbeat. Some of these techniques will be discussed in a future post, but suffice to say at this point that the discovery deadline has a far greater chance of not only being met but with much greater accuracy than the traditional “eyes on every document” practise.
Once the discoverable documents are identified, the system can prepare the discovery list of documents to be served on the other side. The documents themselves can be disclosed to the other side electronically. This is not only a more painless method but can be tactical. I recollect doing “old fashioned” discovery and when the other side asked for the documents they wished to see, they had to be copied and then delivered to the other side. Or, dare I say, if I was on the receiving end I may have asked for all of the documents in the list as I knew this would take time and give me more breathing space. Doing everything electronically removes these notions and can definitely give a tactical advantage.
Discovery is a two-way process because you then receive the other side’s documents, as we all know, and so the whole process of receiving their documents has to be done. Using technology means a simple import into the system ready for review exactly as before and enables comparisons with those already in the system.
What happens next is that the matter will be prepared for trial, in which case the system materially assists by aiding the preparation of trial bundles. Alternatively, there may be settlement negotiations. As I mention in FAQ’s on my website, if a case is to settle then a lawyer and his client must settle from a position of strength rather than weakness and it is incontrovertible that that position will be strengthened if you know your data and what it is likely to bring by way of a Court judgment.
That then, is a brief outline of what a database solution can do for the lawyer and his client. There is so much more, particularly revolving around searching which, as I say, I will discuss in a later post. This post will also deal with the remainder of the quote from the lawyer about choosing a good provider. As an independent consultant do I always advise that a case must be handled using technology? Certainly not, is the answer. My advice would be impartial and would look at all surrounding facts such as; the value of the case; the number and format of documents involved; the attitude of the client and other factors. However if the case is right, then to use the vernacular, technology is a ‘no brainer’.