Q: How would you characterise current sentiment and appetite among your clients for using the latest technology when it comes to e-discovery?
James Levy, partner, Ashurst: This varies significantly depending on the volume and type of exposure to e-disclosure. For clients with employed litigation lawyers there is, at the very least, a greater appreciation that there are tools on the market that can assist in reducing the financial burden of e-disclosure.
Bryant Isbell, director, global practice support, Baker & McKenzie: The level of knowledge about e-discovery technology among our clients can vary greatly depending on region and jurisdiction as well as their exposure to investigations and litigation. Many of our clients who have had a lot of exposure to e-discovery exercises have a far greater appetite to make use of the latest technology, as they tend to understand how it can create efficiencies and reduce costs.
Many of these clients have their own dedicated e-discovery professionals and we work closely with them on strategy to apply the technology not only to the review of their data, but also in the collection and early case assessment phases. These clients are much more likely to ask for the use of technology-assisted review (TAR) work flows, as they also have a level of understanding as to how the technology can work.
For clients in jurisdictions that have very little e-discovery activity or e-discovery rules as part of their legal system, we often help to educate them on how to best utilise technology.
Mark Chesher, legal director, Addleshaw Goddard: All clients want some degree of costs certainty and they are keen to reduce those costs where possible. I think they are keen for litigators to use all the tools at their disposal to deliver that, and technology is a significant weapon in our armoury.
The disclosure process is nearly always one of the most expensive stages of any case and it has been the most susceptible to being streamlined by the use of technology. Predictive coding in particular has the potential to meet this need in the right case.
To some extent we’re fighting against the tide with these new tools. As soon as they are developed (and more slowly accepted by lawyers), the amount of data being generated grows by another order of magnitude. Further challenges and opportunities to obtain evidence arise from new technology, from voice recordings and chat data to smartphones tracking our movements. On the horizon we have the so-called ‘internet of things’ where everyday objects will increasingly be generating potentially disclosable data.
“There’s great appetite from clients already, but that’s not surprising as the technology helps us to do work better and faster”
Nick West
Nick West, chief strategy officer, Mishcon de Reya: There’s great appetite from clients already, but that’s not surprising as the technology helps us to do work better and faster. We are applying varying degrees of TAR on most projects and have run a significant number of full-blown predictive coding reviews.
We launched Mishcon Discover (our in-house e-discovery offering, in partnership with Unified) earlier this year to capitalise on this wave of interest. We’ve also been exploring the use of technologies across other parts of the dispute resolution process, developing a more complete ‘lit-tech’ strategy.
Q: What tend to be clients’ biggest concerns about using the latest technology, aside from data security?
Isbell: From my experience, I think two main factors contribute to clients’ concerns. The biggest is about a basic understanding of what the technology can do and how the work flow will be applied to their matter. Lawyers, for very good reason, want to make sure that every document going out the door has an attorney’s eye on it before it is disclosed.
Many people have the misconception that using work flows such as TAR means technology is making decisions on documents and a lawyer is not looking at every document. It is true that the technology, along with a subject matter expert, is helping to sort and categorise documents based on conceptually similar ones as you mark them.
I think the second concern, or factor for clients to consider, is the type of data they’re reviewing. So many different types of data sets are possible for collection and review, such as structured and unstructured data, chat data, text messages and Bloomberg chat, to name a few.
There are also so many different providers and technologies available in the market that I think clients struggle with trying to understand what technology is best suited to the particular data set they intend to review. In most cases, a typical review will have several, but not all of, these various types of data and choosing the technology that can handle them all can be a daunting task.
Levy: Clients have three main questions when it comes to disclosure (and by implication the use of technology): Efficacy – will the approach/technology work? Cost – how much will it cost/save? And defensibility – what will be the reaction of the court/other side?
Chesher: Generally the primary concern when a client has no prior experience is whether the new technology will ensure that they meet their disclosure obligations within the budgeted cost. Clients are rarely prepared to rely on new technology unless they have a reasonable expectation that it will either (a) do the job better than the processes they are familiar with, or (b) deliver at least as good a result more cheaply.
Q: How much uptake are you sensing in the UK for clients wanting to use predictive coding technology, following the Pyrrho case this year?
Isbell: So far, I have not seen a huge uptick in clients specifically asking to use TAR work flows in the UK. I hear a lot of talk and discussion, and I think it is definitely something that is being seriously considered and discussed among firms and corporate clients.
I think the UK is lacking strong support from the judiciary, which is very different from the US, for example, where Judge Andrew Peck, Magistrate Judge in the Southern District of New York, is a big proponent of the use of TAR and advocates strongly for it in his cases.
Levy: It’s too early to tell, but we’ve noticed an increased interest in the topic. Some clients remain cautious, but those with greater exposure to e-disclosure are more open to having a conversation.
West: Pyrrho hasn’t made a great difference. As the technology has got progressively better in the past couple of years, we’ve been talking to clients about it. Before Pyrrho, we were running successful predictive coding projects with both parties’ consent. Recent developments just make discussions about the use of the technology, internally and with the opposing party, that much easier and ensure that, if needed, we can get it mandated.
Chesher: The Pyrrho case has raised the profile of predictive coding technology to the point where it is something that all litigators really need to know about. Clients are going to want their lawyers to tell them whether the technology is suitable for use in their case and if not, why not? Defaulting to “its not been approved in the English courts” is no longer an option.
Some of our clients already have experience of using predictive coding technology in the US and we’ve used it over here for several years to assist with review prioritisation and quality control. Pyrrho certainly hasn’t opened any floodgates, but I think we’re going to see it used a lot more.
But predictive coding will never work in every case and those with the relevant experience and expertise will be needed to make judgment calls on whether a particular matter is suitable before committing to rely solely on the technology.
Q: What are the biggest benefits of using predictive coding technology in your experience?
West: It’s proven to be better, faster and cheaper for our clients and the statistical component helps with the defensibility of the process we undertake. The technology also allows us to get on top of estimating the total review costs earlier in the review process. Bringing our e-discovery process in-house means we can get our lawyers working on the documents quicker too. All this means we can offer more effective litigation strategies that get our clients the results they want.
“There are so many different providers and technologies available that clients struggle with understanding which is best for them“
Bryant Isbell
Isbell: Cost control is certainly the most obvious and largest benefit. If the work flow is applied in the right way, there is a huge opportunity for clients to save a tremendous amount of money on document review rather than taking the traditional linear approach.
The other benefit, and perhaps a bit less obvious, is using the TAR work flow as a quality control methodology. When used in the right way, I find that it makes an excellent quality control tool in order to validate your datasets before a final production.
Levy: Because of the flexibility of predictive coding, the benefits change with the use case. These include time and cost savings and a better (and earlier) understanding of your data set.
Chesher: On the right case the potential costs savings are very significant. Aside from that, there is a real tactical and strategic advantage in speeding up review and ensuring that the experienced subject matter experts see the documents at a much earlier stage of the document review than they would on a traditional, staged linear review.
There is also evidence that predictive coding can be more accurate and comprehensive than a traditional keyword search followed by a linear review.
Q: In the context of e-discovery, how significant a concern to clients is data security?
Chesher: It’s a big concern for a lot of clients. From FTSE 100 and equivalent institutions to high-net-worth individuals, its right up there with data protection issues. Clients expect their lawyers and service providers to hold their data at least as securely as they do themselves. Alleged hacking seems to be an increasingly common feature of high-value civil fraud litigation in particular and as the data created and collected on the vast array of devices in use today gets richer and more voluminous, the stakes will increase.
West: Clients are always concerned when it comes to how and where their data is being stored.
Isbell: Data security is something that is at the top of all of our clients’ minds, and I think it is – and should be – a significant concern in the
context of e-discovery. The data that is being collected from our clients in the context of litigation and investigations contains highly confidential information. This could include proprietary information about their products and services, personal identification data about clients, patients and employees, and in some cases even state secret information.
It is extremely important that our clients take every precaution to protect their data and that certainly extends to their outside counsel and external third-party consultants.
How should firms secure their e-discovery systems and limit the potential fallout from a data breach?
Chesher: We’re careful in only selecting e-disclosure providers whose systems and processes meet or exceed industry best practice. Particularly
on sensitive matters it’s crucial to maintain (and document) the chain of custody ensuring the security and forensic integrity of the data, from the time it is harvested from clients’ and custodians’ devices through to when it is uploaded onto the system.
“One firm couriered me a hard drive of data with a super-secure password, but undermined those efforts by enclosing a cover letter providing the password”
Mark Chesher
The physical security of the devices and media utilised in the process is as important as the electronic security of the systems on which the data is held and reviewed.
People are generally the weakest link in the security chain, so training and supervision is vital. One international firm, which shall remain anonymous, once couriered me a hard drive of data encrypted with industry standard security and a super-secure 25-character password of random letters, numbers and symbols. Unfortunately, all those efforts were undermined by whoever had enclosed, in the same package, a cover letter providing the password.
“Plan ahead. Do everything you reasonably can to make sure that there is no data breach”
James Levy
Levy: Plan ahead. Do everything you reasonably can to make sure that there is no data breach. The exact steps will depend on the firm’s particular e-disclosure set up. Sensible steps are likely to include: use of secure data encryption; obtaining a satisfactory understanding of the data security infrastructure adopted by third-party specialist service providers; use of confidentiality agreements with third parties; and regular audits of your infrastructure and processes to make sure they are fit for purpose.
Isbell: E-discovery systems are critically important, as they hold very sensitive client data. When securing e-discovery systems, firms need to consider how best to protect the confidentiality, integrity and availability of information. Systems need to have appropriate controls in place and those controls must be enforced and continually evaluated against the risk firm’s face, versus the cost of protecting against those risks.
West: It’s essential that certified procedures are in place, roles and responsibilities are defined and the state-of-the-art (and up-to-date) technology is deployed. We also use a wide set of threat management strategies – robust firewall policies, cutting-edge encryption, penetration testing and vulnerability scanning. Additional measures such as data volume permissions can limit the impact of a breach.
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