Litigation support software conundrum

In most circumstances, a legacy is a very nice thing to have. But not in the world of information technology, where owning legacy software or hardware is rather like inheriting your grandfather’s 1990 Oldsmobile — it still runs and gets you where you are going, providing you don’t want to go too far or too fast, so you are reluctant to get rid of it, but it costs a fortune to maintain and occupies space in your garage that might otherwise house a brand new SUV with back-up cameras, parking assistance, and myriad other technological enhancements.

That is the situation that many Canadian law firms now find themselves in as they consider what to do about the old —and perhaps soon to be obsolete — software that has been the key technological support for a large number of litigation departments for more than a decade. And staff at some smaller law firms that rely on the aging software to manage their workflow and documents, as well as for e-discovery purposes, may still be unaware of major changes that could soon be forced upon them.

“This could be totally unexpected and unbudgeted,” says Dera Nevin, e-discovery counsel and senior director of litigation support services at McCarthy Tétrault LLP. She and other litigation support specialists are concerned they will no longer be able to rely on their legacy versions of Summation iBlaze, the most widely-used litigation support software in Canada. “It’s something people need to know about and plan for — and assess whether they need to upgrade their technology or what kind of solution is appropriate for them,” she says.

The company that developed the Summation software underwent two corporate mergers over the past decade and is now a part of Utah-based AccessData Group LLP. AccessData is currently marketing two new web-based versions of Summation that are sufficiently different enough from the original to be perceived as brand new products. Nevin and several colleagues in other firms have been told that AccessData will stop supporting the legacy software in three years and the company will only offer her a maintance contract for the new version of Summation.

However, Nevin and others are concerned the new version has bugs and has not been fully tested. They say they haven’t been able to evaluate it properly because the company has declined to refer them to other users who have tested and deployed the new software.

Not true, says AccessData chief executive officer Tim Leehealey. “We’re supporting the old product. We will do that indefinitely,” he says. He maintains that the product has indeed been tested, though he admits that there are still some bugs  — just as there are in newly released versions of Microsoft Windows. “We are doing our best to find them and stamp them out.”

Kearren Bailey, director of litigation support at Toronto’s Lenczner Slaght Royce Smith Griffin LLP, is not reassured. “That’s not the information we have been given in the past. We’re concerned about inconsistent information. We’re operating in a vacuum,” she says.

Why all this concern about one piece of software? It’s because Summation has long been the lifeblood of most Canadian law firm litigation departments, the fundamental tool used for case management, says Christopher Walker, manager of litigation technology services at Torys LLP. “Everyone is very heavily invested in it and very heavily dependent on it.”

Making the transition to a new product — whether firms choose the new version of Summation or one of its competitors — will be very expensive, since it may require deploying new hardware and it will certainly involve a significant investment in moving data, integrating it with other applications and processes, training technology support staff in how to manage it, and training litigation support staff, as well as lawyers and law clerks, in how to use it.

But the question Walker is asking is whether firms are in a position to make all these changes without being sure the software is reliable enough to meet the exacting demands of a legal environment where lost or compromised files could have severe consequences. “We’re not asking questions that are extreme. We’re asking, ‘What is your development schedule? Can we see the product? Can we talk to people that have used the product?’ Generally, the response has been so far: ‘No you can’t. And please sign this contract.’”

Yet, no one is forcing law firms to give up their legacy software, says Leehealey. “If you’re really solving your problems, have relatively small cases, and are happy with the existing product, I’m not asking you to move. We’re here to support you.”

However, Leehealey adds, the old software is limited by the amount of information that can be fed into it and the fact it handles images of documents rather than native electronic documents. The new software provides a relational database that allows users to find information and link files together in much more flexible ways than the flat database of the legacy software. Also, perhaps most importantly, the new software provides tools for reviewing files and filtering them out of the database, whereas users of the old software must spend hours going through all the material on a hard drive to figure out what files are relevant to each case in order to enter only the relevant information into the database.

Leehealey maintains that the continued popularity of the legacy software north of the border is largely due to the fact that images of electronic documents are still acceptable in Canadian jurisdictions, whereas Americans have stricter standards with regard to the use of native document formats that contain metadata (information about such things as when and by whom the document was created, copied, or accessed).

In any event, an explosion in the use of e-mail and other electronic documents may make it necessary for firms to upgrade to more powerful software applications, says legal technology expert Martin Felsky, partner and co-founder of Harrington LLP. But such changes may not be too expensive, he adds, since many web-based tools are now available on a pay-per-use basis, which could level the playing field for smaller firms.

Walker acknowledges that to a certain degree AccessData could be doing Canadian law firms a favour. “In Canada, the industry is behind the times. People have fallen into dealing with legacy software and haven’t given a lot of thought to it. The way the AccessData situation has played out has forced people to start thinking about the bigger picture and how things are fitting in. It’s precipitating a move that they would have had to make eventually.”

Nevertheless, Nevin is concerned a lack of transparency about the reliability of the new software could result in people making hasty and ill-informed decisions. “This development could force a lot of change. We just want to make as many lawyers are aware of this as possible, so they can do it in a planned for, cost effective way that doesn’t put their clients’ data or their law practices at risk,” she says.

Freelance journalist and business writer Kevin Marron can be reached at [email protected].

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