It has been typical for discovery to be delivered in a linear relationship between the lawyer and client.

The problem with this model is that the technical skills are sitting on the outside of the core relationship and tasks. Communication and decision making around the technical approach is often resting with the people who understand it the least.

We can start to find solutions by creating an integrated structure.  The skills needed to manage large volumes of electronic documents are now highly specialised, and include (leaving aside lawyers):

  • project management skills;
  • problem solving skills;
  • interpreting skills;
  • forensic collection skills;
  • software specialists;
  • analytic specialists; and
  • legal process specialists.

The rarest skill again are those individuals who have a deep knowledge of both the legal and technical task to be undertaken.

The benefit of this model is that it works to integrate the three skill sets needed to make informed, integrated and intelligent decisions as a matter progresses.

We connect the skill sets of the client, the law firm and the ediscovery provider so that you have the people with the right skill set doing the right job.

We collaborate with the law firm to:

  • get to the facts faster;
  • understand their case better;
  • work more efficiently;
  • review the documents intelligently; and
  • to create a legal review strategy that matches their case.

The results of connecting the skill sets and intelligently reviewing the documents are a:
 

  • reduction in cost of the processing and storage of documents;
  • reduction in legal review time therefore legal spend for the client;
  • the legal team get to know the facts faster; and
  • minimise the disruption to the clients day to day business as we are asking the right questions and getting the right answers, we understand how the IT teams talks and we can interpret that for the legal team in order to get a better outcome for their client.
More specifically the model involves the following considerations:
1. Building technology skills into the heart of the litigation team with a seat at the table (and out of the basement).

In most good litigation teams, there is a tech-savvy senior associate who takes the management role for eDiscovery and learns on the job – often at great expense to the client.

But even the best of these lawyers rarely understands the technical basis of the software they are using. And even if they do, that understanding is limited to the actual software product being used on that matter and not all the other products available. And if you’re lucky enough to have one of those lawyers in your team, chances are that they are also a very good lawyer and will move on and up and be lost to the task of managing discovery.

In-house Counsel cannot assume that the relevant skills are in all of the legal teams we appoint. We need to be deliberate about building our litigation teams with the right skills sitting with the right people from the outset of a matter.

This approach is focused around making sure there is a discovery specialist, who works with the client team and the legal team at an early phase to:

  • assess the client’s document landscape and the IT and storage infrastructure that the client uses; and
  • match it up with the litigation software that best suits the litigation team’s needs; and
  • develop the strategy and approach that will minimise cost for the client while maximising the benefits for the lawyers.

Once the best infrastructure is established, the discovery specialist can then focus on the best way to assist the legal team to understand the facts of the case faster and review documents in a logical and intelligent manner to achieve a better outcome for the client.

2. Enabling in-house Counsel to select a specific lawyer for a matter and plug in the technology skill set required to manage the discovery.

When in-house Counsel go to the market to select a lawyer (or law firm) to run any dispute, but particularly a complex construction dispute, they are establishing a relationship for a long time. In house counsel not only want a good lawyer, but also a good, solid team and increasingly, a team that understands the organisation’s IT infrastructure and operations, the technology that will be used to deliver the discovery task, and the interactions between the two.

That’s a tall order.

And this is especially complex in a market where some law firms and software providers are locked into specific solutions, approaches and software. That can inhibit a more flexible approach to finding the right solution for a specific matter

3. Engaging everyone’s IT teams as part of the solutions

An organisation’s IT teams are generally not familiar with litigation databases or the strict requirements relating to metadata. Their core responsibilities and day to day functions are designed to meet very different needs.

A simplistic request to “put all the documents relevant to x on a disc and send it to me” is fraught with questions, cost and problems.   Who will help the organisation’s IT team understand how to properly extract documents from systems and make their life easy without causing problems down the track. Who is deciding the relevance questions and have we properly framed the search task up. Are we actually doing it in a way that is cost effective once it gets to the lawyers and their litigation management systems.

The complexity of the IT task now necessitates the inclusion of the technology skill set of everyone involved to manage the broader relationships and interactions.

4. Willing lawyers who are open to change.

Lawyers and change – not necessarily two words that go together. After 20 years of eDiscovery, it is still a common approach to put all the documents in a database, hire a room full of paralegals and ask them to read the documents in chronological order and work out which ones are relevant.

But there are many more options available now to do things better – both in terms of the technical issues and in terms of the practical and legal analysis.

The good thing is that bringing new thinking to both the technical and legal analysis makes the discovery task faster and also improves the quality of the analysis – actually improving the legal team’s ability to know and run their case.

And more good news – the Courts are also recognising the benefits of using technology in litigation – not just for the discovery task.

Case study “Discovery in the Cloud – how a corporate counsel solved the problem of the cost of third party data hosting.”

Why is data hosting so expensive in the litigation context by comparison to a corporate’s internal business costs for the same activity?

In a recent case, the traditional approach was taken and multiple quotes were obtained for the data hosting service to be externally provided. The usual questions about the costs of data hosting arose.

The question then became an investigation into whether the data hosting could be done by the corporate itself. The solution was found in the corporate engaging the litigation software provider to provide the litigation software, the corporate hosting the software and the documents on Amazon Web Services (AWS) using their corporate purchasing power to reduce the price of storage for documents and the discovery specialist, ELMS, managing the process and phases of the eDiscovery timeline.

This model has the potential to deliver millions of dollars in savings and appears to be the first of its kinds in Australia. The issues that needed to be worked through to make this situation work included rigorous assessment of the cost benefit and disruption to the business, privacy and security issues, recoverability of costs, capacity and speed of network, and external accessibility.

This type of solution can’t be delivered without a committed client and a holistic perspective of the overall task that saw the substantive advantages of leveraging their own organisation in this way.

© Electronic Litigation Management Solutions

Ph: (07) 3009 7270
Email: kate.clark@elmsolutions.com.au