The Earlier You Start, the More Technology Can Cut the Costs of Discovery
Discovery used to mean sending a small army of associate attorneys and paralegals to a warehouse to pour through boxes of paper documents and flag items to scan that might be relevant to pending litigation. The process could take hundreds of hours and rack up huge legal costs for a corporation or a law firm’s client.
The boom in electronic documents may well have changed that scenario for the worse, but the increasing availability of e-discovery tools may have changed it for the better. For perspective on how technology can help contain the high costs of discovery today, we talked to Michael Frazier, director of information governance at TERIS.
Q: What’s driving the rising interest in using technology to contain the costs of discovery?
A: When the recession hit and legal budgets were under particular scrutiny, finding ways to contain costs across the legal spectrum became very important. Discovery was an area that was ripe for the pickings. Technology was advancing quite quickly, and being able to use technology to reduce the number of documents that needed to have a human reviewer, or to reduce the amount of the time it took to find relevant information, became easier.
The volume of data, especially electronic data, is increasing exponentially, and it’s not slowing down any time soon. Discovery in general is one of the most expensive parts of litigation, and attorney review is the most expensive part of discovery. The more information you have to review because of the expanding data volumes, the more potential cost there is. It can be millions of dollars to have attorneys review documents. Being able to streamline and make that process more efficient is particularly important to companies involved in litigation.
Q: Which area do you see needing more attention – being proactive and using technology before discovery, or being reactive and using it during discovery?
A: I actually think there are three areas.
Proactively managing information — information governance is the term for that — is particularly needed because managing information effectively before you get to litigation is always going to be good for an organization. The adage “an ounce of prevention is worth a pound of cure” holds true. If you can spend the time and some money to manage information up front, if you can apply record-retention policies and schedules to defensively delete data that is ROT – redundant, outdated or trivial – you’ll have less data that potentially needs to be preserved, collected and reviewed if and when you get into litigation. Using technology to apply auto-classification and retention rules, dispose of information and find information — that’s the proactive information governance world.
The next piece, which is also proactive, would be litigation readiness or preparedness. This includes making sure that you have the proper discovery processes, such as a legal data map and litigation hold procedure, to help you identify repositories of information that will need to be preserved based on the underlying issues of the litigation. Technology can help to effectively and efficiently preserve identified information repositories. This puts you in position to do more targeted collection of potentially relevant information rather than wholesale sweeping preservations and collections.
Being reactive, once you’re in litigation, analytics tools like email threading, duplicate identification, concept clustering or technology-assisted review help make a review more efficient and contain costs that you’d otherwise spend on attorneys sitting and reviewing every single thing.
Q: How can corporate, in-house counsel adopt technology to cut discovery costs? Where should they start, and what makes the biggest impact?
A: In-house counsel has a particularly important role across the spectrum. From a corporate perspective, proactively managing information is a large goal, and it’s not just something within legal. If I were advising corporate counsel, I would say start with proactive information management and readiness initiatives that you can control. You can control implementing legal hold policies and implementing automated discovery processes to do preservation and collection, which necessarily includes cooperation from IT and other departments. By doing those first, you’re in a position to get quick wins that are potential pain points for legal, and you’re laying the foundation for cooperation across the organization for larger information governance initiatives, which in turn can also help cut discovery costs.
Every corporate legal group is going to have to evaluate its particular pain points. That will differ from corporation to corporation based on their litigation profile, regulatory profile, internal capabilities and goals for efficiency. In a litigation context, being able to effectively and efficiently identify, preserve and collect information is the area to look at for the potential for large impact. If a corporation doesn’t have a strong litigation or regulatory profile, discovery costs may not be a pain point. It might be something more business-focused like automating contract management.
Q: How can law firms adopt technology to cut discovery costs? Where should they start, and what makes the biggest impact?
A: I think there are two areas. One, law firms have the same issues as corporations, in that they have information that needs to be protected and secured.
Two, from a client information perspective, law firms need to understand the technology that is available and how to use it to provide their clients with, if not cost certainty then at least cost containment. They can do that through understanding what analytics tools are available, understanding review work flows and efficient management of reviewers. It’s also accepting that most clients aren’t going to want to pay $250 or $400 an hour for an associate to review documents when they can outsource it to contract attorneys at a fraction of the cost. It’s having those partnerships, knowing when to use them, and identifying areas that can be streamlined in that process that make an impact.
In my opinion, what makes the biggest difference is really learning new technologies and being comfortable using those new technologies. You need to know when to apply advanced analytic tools to quickly identify information that is potentially relevant and may bring about a quick resolution of the matter; and not spend a lot of time and money collecting and reviewing data that has no relevance to or impact on your case.
Q: Where does TERIS come in?
A: We are positioned to help both corporations and outside counsel on the whole spectrum.
Starting with information governance, we can provide an assessment to help corporations understand where they are in terms of information policies and procedures, to identify gaps and help shore up those gaps, to look at record retention programs and what technologies the corporation has in place, and help source technology if necessary.
A lot of corporations see technology as a silver bullet – “If we just buy an e-discovery tool or ECM system, it will fix all of our problems.” That really neglects the people, the process and the needs of corporate stakeholders. We can help them gain an understanding of those needs, help them put the policies and procedures in place to be more effective so that when they are looking at purchasing technology, they can do it in a way that makes the most sense for them.
We work with corporate clients on preservation and collection of information for litigation. We also work with corporations and outside counsel on processing data, hosting it for review, using state-of-the-art technologies and applying analytics tools to make the process more efficient. We work with law-firm attorneys to put work flows in place, whether for review or collection, making sure their production specifications are optimal so that when they meet with opposing counsel they know what they’re asking for and what they’ll be getting. We’re in position to affect all these areas.
The earlier we can be engaged in the process, the better off both corporations and law firms will be in terms of identifying information and knowing their capabilities. That’s proactive. When there is the potential for litigation, the sooner we can be involved in helping to identify, preserve and collect information, the better off we think everyone is. If we’re brought in later on, we pick up midstream just fine, but often we can identify areas that could have been handled more efficiently or more effectively had they been approached a little differently at the outset.
Q: What else would you tell attorneys about TERIS’ services?
A: We can positively impact litigation processes at all stages of the Electronic Discovery Reference Model (EDRM). Anyone who has questions or just wants to gut-check their own processes, certainly we’re here to help them. To paraphrase Yogi Berra, you can’t get where you’re going if you don’t know where you are. You’ve got to have an understanding of the lay of the land before you can understand how best to move forward. We can provide an objective viewpoint to help gain that understanding.