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Chasing data

Legal Report: E-discovery
|Written By Shane Schick
Chasing data
Illustration: Matthew Billington

Anne Glover will admit it: She sometimes misses all those banker’s boxes. Well, maybe not all the banker’s boxes. “I miss the days of five boxes where they would say, ‘Here are all the documents in the case,’ and you could read them five times and know you didn’t miss anything. Those days are gone,” says Glover, a partner at Blake Cassels & Graydon LLP in Toronto.

Glover is the head of Blakes’ e-discovery and document management team, where she spends most of her time sifting through more data than a room’s worth of banker’s boxes could contain for clients such as Visa Inc. She also helps companies get “e-discovery ready.” In other words, Blakes advises on the best ways to collect, manage, and store everything from e-mail and PowerPoint presentations to instant messaging chat records should a court one day ask to see them. “The volume is just becoming so large,” she says, “and if you don’t have everything, you’re paralyzed.”

E-discovery software is supposed to be a means to avoid that kind of paralysis, but those with little experience in acquiring such products might feel equally frozen. The variety of tools, services, and delivery models has only become more complicated with time, as has the nature of the data that might fall under e-discovery. Mastering this area is not only a budget issue — it’s something that may fundamentally change the skill sets of the next generation of lawyers across the country.

One of the biggest challenges, according to Peter Vakof, is that many lawyers aren’t quite clear on all the areas e-discovery may span. A partner with the forensic services unit within PricewaterhouseCoopers in Toronto, Vakof says he has come across plenty of lawyers who get told by vendors that their products will give them anything necessary for a case at the push of a button. Then there are companies that allow law firms to outsource aspects of e-discovery work instead of purchasing software. PwC is among those that will deal with forensics such as data review and production, and then there are former police staff who are selling software that deals with another piece of the puzzle, such as capturing an image of a document.

The array of options become very confusing, and is no replacement for developing a strategy with key stakeholders from both the legal and IT side of a company. “You can have the best word processing software, but it’s not going to write the article for you,” he says by way of analogy. In a large organization, Vakof suggests appointing at least one lawyer as an e-discovery point person who will understand the organization’s common needs, read up on the latest e-discovery articles, and create relationships within the larger e-discovery community. “It’s not just someone who goes to a conference once a year.”

Susan Wortzman, founder of Toronto-based e-discovery law boutique Wortzmans, describes staying on top of the latest on the subject as “a frighteningly full-time job.” She says vendors are in her office multiple times each week conducting demos, while other staff are watching webinars or meeting with an internal technology strategies group, which is lead by an engineer. Even then, it’s hard to know for sure what’s going to work well and what won’t. “They plan their demos and know exactly what searches they’re going to do,” she says. “It’s not real life.”

Gartner Inc., a market research firm based in Cambridge, Mass., published a report in June that ranked the major players in the e-discovery space. Those categorized as “leaders” include Kroll Ontrack, HP Autonomy, Recommind, Symantec, and FTI Technology.

Hal Marcus, a former litigator who now works as an “e-discovery evangelist” for San Francisco-based Recommind, says some law firms may spend too much time focusing on the production side of e-discovery, or getting documents ready to be turned over to the court or opposing counsel. Instead, the emphasis should be on digging deep for the documents and data that really matter. It’s about context, not quantity. “People often think there is artificial intelligence [in the software] to determine relevancy, but all it’s doing is taking an attorney’s judgment and amplifying it,” he says.

Vakof suggests thinking about the differences between keyword search and concept search. For example, some e-discovery products may be really good at finding mentions of a specific name or term in a vast number of files, but concept searches would include more related ideas. Imagine looking not only for the keyword “terminate” but “fire,” “dismiss,” or similar concepts. In both cases, there can be false positives, but if you use products long enough the results might improve, Vakof adds. “It’s like learning to train a voice command system. It’s not that accurate at first, then [later] it works OK.”

What may make e-discovery even more challenging over the next few years is the rise of what’s called “big data.” Most e-discovery products and services were designed with structured information such as e-mail messages in mind, but big data refers to the mass of unstructured information on social media and within databases that is growing sharply in volume, variety, and velocity. “The impact of big data on e-discovery isn’t theoretical, it’s absolute,” says Chris Grossman, senior vice president of enterprise applications with Rand Secure Data in Framingham, Mass.

“Companies view information as being structured or unstructured because of its complexity, but the law doesn’t.”

Wortzman says she has noticed more vendors at legal conferences creating new versions of their products to address big data, but databases based on proprietary software such as enterprise resource planning tools from SAP are another story. “I can’t produce that to the other side, because they don’t have the software to run it,” she says. “It means coming up with a way to make that information accessible and shareable.”

Then there’s cloud computing, where information that once sat on a company’s own servers might have moved to a third-party at another location. Peg Duncan, an e-discovery consultant based in Toronto, points out that it’s getting increasingly difficult to know where every file is truly located.

“I used to use Outlook. Now I find that I have a very competent Web client, and why should I bother having this stored on my workstation when I can store it online and not have to worry about it?” she says. “But if someone were doing e-discovery, they wouldn’t find those messages on my desktop. They would have to go to the provider. It’s going to be interesting to see how the courts serve any of these providers like Google or Yahoo.”

It’s probably best if law firms recognize that developing an e-discovery strategy and getting the right products to execute it is going to take some time. Vakof estimates that in some cases, acquiring the tools through standard procurement can take up to 18 months. Wortzman suggests making it easier by doing all the information gathering upfront to make the right purchasing decision. This includes a thorough look at what kind of cases crop up that typically require e-discovery, the volume of data involved, and which clients are good at self-collecting data versus those who need help with the forensics. Grossman agrees — even if firms decide to outsource, it’s better to “level it out” by having a vendor on retainer, rather than spend more during a peak period when several e-discovery cases crop up at once.

Glover suggests even if firms don’t have a dedicated e-discovery team in place, the knowledge and expertise needs to filter out across the organization in order to avoid re-learning important lessons. “What can happen is you have one associate on a file with an e-discovery case and they learn about a piece of software. That knowledge isn’t always being passed on to the next associate,” she says. One way of addressing this is by seeing e-discovery as part of a firm’s overarching information governance program. This is where consultants like Duncan say they are spending more of their time, so that processes around data collection and production are ironed before an e-discovery request comes up.

As e-discovery expertise continues to mature, it may become one of the most marketable skills lawyers develop — and might even influence future hiring decisions, according to Marcus. “It’s intriguing for me, because I’ve spent 20-plus years being in large law firms in the litigation practice. I was completely surprised that I was getting involved on the tech side,” he says. “I felt like the one-eyed man in the land of the blind. Now, e-discovery is becoming a title.”

Ask the questions

Choosing an e-discovery solution means addressing several interconnected issues. Product demos can be impressive, but don’t be fooled: a tool’s features can be the least important factor for you to consider. KPMG Canada’s Dominic Jaar, partner and national practice leader, information management services, and David Sharpe, manager of e-discovery, offer some key questions you should endeavour to answer while exploring solutions:

What types of cases do you currently handle? Will the cases be similar in the future? The volume and nature of the data you are or will be dealing with is central to your decision. Think scalability. Not all solutions handle large data sets (and “large” means different things to different vendors) the same way. Processing and reviewing scanned documents or Excel spreadsheets do not require the same capabilities.

Who do you have on staff? User-friendliness is important, however, if you’re investing in litigation support and e-discovery solutions, don’t be forced to establish your expectations at the lowest common-end-user denominator. Each firm has power users in its lawyers and litigation support professionals.  While there would be change management required to bring as many users on board as possible, the power users should play an important role in choosing the solution. From a management standpoint, keep in mind power users have a vested interest in protecting their turf.

What is your initial budget? Can you secure stable funding every year? Technological budgeting generally limits itself to the upfront capital investment for the software and hardware requirements. You should calculate the original investment, but perhaps most importantly, the recurring costs of power and UPS, bandwidth, cooling, backup, redundancy, patches and upgrades, and security, etc. Have you considered the annual hardware and software maintenance and licensing costs? What about staff training? Finally, are you confident you will get the evolution budget to change your equipment every three to five years?

Which is the best licensing model for you? Should you have an all-you-can-eat solution or should you settle for a volume and/or user-based licensing model? Answers to the first questions will help you decide.

Where is the best location for your solution? Have you thought about exploring hosted and/or managed solutions? In most industries, organizations are now offering themselves the best, the most scalable and secure, but often also the cheapest (from a total cost of ownership standpoint) solutions by relying on IAAS and SAAS providers. The legal market hasn’t been forgotten, Canadian providers now host solutions you could otherwise put behind your firewall, at a fraction of the cost and with the support of a local team.


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