As published in LawTalk, issue 799, 6 July 2012
Over recent years there has been an exponential growth in both the volume and sources of electronic information. Nearly all information now originates in electronic form. This has complicated the discovery process as it has created many new challenges for lawyers.
Managing electronic information in the same manner as paper documents can lead to substantially increased discovery costs. Paper documents have always been burdensome for lawyers, but you usually knew what you had and where it was. This is not always the case with electronic information. Most cases will still usually turn on only a handful of documents, but how to find those documents in an electronic world is crucial. It is essential to devise methods to identify key information without having to trawl through volumes of irrelevant information.
The new discovery rules establish a framework to assist parties to reach agreement on discovery issues in a proportionate and cost-effective manner. To be able to begin dialogue with the other party about proportionality, lawyers are now expected to be more informed about electronic discovery issues at an earlier stage.
Without the right expertise, electronic discovery can be a complicated process. Specialist expertise can assist lawyers navigate some of the evolving challenges of electronic discovery, reducing their client’s discovery costs and allowing lawyers freedom to focus on the legal aspects of the case.
A litigation support consultant or e-discovery expert may be able to assist in simplifying the discovery process.
What does a litigation support consultant do?
Many may wonder how a litigation support consultant could assist them as most have not needed one up to now. To help explain how a litigation support consultant could assist law firms and organisations, I thought I would give a summary of a busy day for me from last week.
The working day starts with a breakfast training session at a law firm about the new discovery rules. The session walks them through the key changes of the rules and identifies some practical methods that may assist them with their discovery exercises.
From the training session I am off to a firm that has a large volume of documents and wants to discuss methods of searching the documents. It is a complex case, so we discuss the limitations of keyword searching as well as the other options available to them, like cluster-based search strategies. Initially they provided me with a set of keywords they had intended to run. Evaluating the keywords, I am able to identify some of the terms may result in potentially over inclusive, or worse under inclusive results, missing important information.
Next up is a conference call with a US law firm looking for me to manage the document collection process from a New Zealand company involved in US litigation. I am often engaged on US-based litigation, or for US firms involved in New Zealand litigation as there is usually more importance placed upon how information is collected. It is critical that the integrity of the electronic information is maintained and no information is lost during the copying of this information from the client.
I receive a phone call late morning from a firm in Christchurch that has received some cost estimates for paper scanning and coding work that they want to outsource. They have engaged me to see if the cost estimates are accurate and if there is any advice that I can provide to help them understand their exact requirements, or if there are any alternative strategies.
While travelling to my next meeting I have a call with an IT person from a client. The law firm has asked me to determine from the IT staff what electronic information is available for 10 individuals from a two-year date period. I am then able to explain the technical issues in plain language to the lawyer about what information the client has and what is missing. There are two individuals that are no longer with the firm and their information isn’t readily available, so I explain the lengths and likely costs required to obtain the missing information.
Lunchtime involves visiting a large law firm to provide them with some education about electronic discovery issues. The focus of the session is about the advice they can provide to their clients about preserving documents as well as going through some methods to improve the efficiency of reviewing information. Essentially I am helping the firm understand the technology and the benefits it can bring to their job.
Immediately following the lunchtime training session I am off to a firm that has been sent an electronic exchange protocol. They have asked me to look at it and try and establish if there is anything contained within the protocol that they might struggle with, or may not be proportionate for them to do so. It is essential to sort these issues out at an early stage instead of a few days before the discovery deadline.
Late afternoon, I am off to a meeting with a firm that is about to start a discovery exercise. They have asked me to them help plan the exercise to ensure they conduct discovery both proportionately and cost effectively. At this early stage I am just providing initial advice on the most suitable approach for them. They are new to electronic discovery, so I explain what is required as far as preserving, collecting documents and the various search strategies. I am able to provide them with indicative pricing estimates of the stages of the discovery process, so they can evaluate a proportionate approach as well as outlining the likely discovery costs to their client.
Throughout the day I receive emails and calls from a firm that I am helping to manage their discovery logistics. This matter has been running for a number of months, so assistance is only required at stages that require a bit of guidance. The query today is how to search for a certain type of document within a specified date range, but to exclude documents from certain individuals.
One of the emails that I received during the day was from a firm that has a large volume of paper documents. Due to tight timeframes and to provide substantial cost savings we are looking to outsource this work to a local scanning firm, but getting the coding completed offshore. They have never done this before but do see the benefits of the substantial cost savings, so I reassure them as to how it will work in practice.
During a little spare time I keep track of the e-discovery space on social media and share anything that I think may be relevant. I also use the odd coffee break to conduct a final review of my latest blog post.
On the way to my last meeting I receive a call from an in-house counsel at a firm to discuss options for them to manage discovery. Like many businesses they are concerned about the costs of litigation. They want to look at alternative approaches that can help them reduce their spend on the discovery phase. I provide them with advice about efficient methods to provide documents to their law firm, as they have previously found this to be a burdensome process. They also want to discuss outsourcing work for scanning, coding and electronic processing, so the law firm is just required for the legal review of the documents. I have been receiving an increasing number of queries from organisations (whether it be their in-house counsel or IT), seeking advice on how they can manage their electronic information more effectively before the involvement of a law firm.
The working day concludes with an early evening training session with a group of local barristers to assist them with the new discovery rules. I also provide them with some demonstrations of a number of e-discovery products so they have more appreciation of what they all do. It is a productive session as they are able to see the various products for themselves and I am able to provide details of what each can and cannot do.
