Litigation support: digital tools solving digital problems

Glenn O'Brien, Former Director of Electronic Discovery, Liberty Mutual, outlines litigation support best practice in the digital world. The views in this article are the author's own, and do not represent the views of Juro nor those of CLOC.

“Where’s the email?” This was the defining question and often the sum total of what e-discovery meant ten years ago. I spent more than a decade as director of electronic discovery at a Fortune 100 insurance giant, and during that time the business of supporting litigation has come a long way. Computers started out as a head-scratching problem to be solved - discovery for litigation was paper-based, and by and large people were happy for it to stay that way. It was often possible only to scratch the surface of an enterprise’s documents: sifting through hard copies was the norm, searching emails was about as far as most projects went, and if you had a shared drive to peruse, you could count yourself very lucky.

As soon as an employee left the company, one of two outcomes was likely - both bad. Either their information and their knowledge of an audit trail would walk out the door with them; or that information would stay forever, in its unwieldy entirety, because nobody understood what it was or how to dispose of it. Either you couldn’t find anything you needed, or new and current employees ended up sitting on a stack of emails from ten years ago sent by or to a person they’ve never heard of.

If this sounds unsustainable, that’s because it was. The sheer volume of litigation that was arising, particularly in a sector like insurance, forced the practice of litigation support to change. An intimidating process like the one described above was too much for most in-house teams to handle, meaning that outside counsel were needed for extra firepower - bringing with them a cost that was potentially limitless. Private practice lawyers are trained to be forensic and diligent, exploring every rabbit hole and chasing down every document, at a relentless hourly rate that could quickly spiral out of control.

Beyond the email

The additional of e-discovery software to the existing range of law practice management software brought a sea change to a process that had been horribly labour-intensive for IT. Before applications like Encase eDiscovery came along, we had to ask IT to manually export a mailbox and get the last backup of the computer from the backup file-share. Aside from being insufficiently forensic, this process used precious IT resources, which cost money, and had a big opportunity cost as it diverted them from other useful tasks. The introduction of e-discovery software meant, for the first time, that I could place an agent on a desktop, get a forensic disk image, and collect data from the email exchange without needing to engage IT. It was expensive - but as an investment in our long-term business, it was transformative.

Deploying e-discovery software properly means the reaction time to a litigation risk will be unrecognisable, compared to the heavily manual process we used to rely on

Best practice has since moved on, thanks to both software capabilities, and our knowledge of them, improving dramatically in tandem. Organisations with the right litigation profile - such as insurance companies with high litigation volumes - can invest in software that offers more than just powerful e-discovery. Beyond pure collection tools, legal software can now help with privacy and regulatory events like GDPR. It can set flags when certain events or triggers occur. It integrates with data loss, and improves security too. All this combines to help you improve what really matters to the company: the bottom line.

More internal firepower means you’ll need to spend less, on fewer external counsel; and deploying e-discovery software properly means the reaction time to a litigation risk will be unrecognisable, compared to the heavily manual process we used to rely on. Using external counsel might mean choosing a vendor, getting a statement of work, and embarking on a drawn-out back and forth; whereas an internal resource is just a phone call away.

2D tools in a 3D world

All this progress is undoubtedly a good thing, but the volume of data we collect now, and more importantly, the different types of data, mean that we need to take a giant step forward once again. When I first started with e-discovery, it was all about the email, and finding a way to distill all the evidence and information available to us into a .tiff or a PDF.

But the nature of the data with which we’re concerned has moved on, and it’s no longer good enough to take 21st Century technology, like smart review and data clustering, and dumb it down to give us a paper output to pass around. To take a specific example, 20 years ago, the training manual that told you how to do your job might be delivered as a hardcopy book. Move forward ten years and it might be a PDF on a shared drive.

Fast forward to now, and it lives on the intranet as a web page, and it contains tools, tips, sections that expand when you hover or click, even video - how do we capture whether a user saw each element? How do we express their interactions on the page in a 2D, saveable format that can be searched like a document? If they reacted to a resource posted in Slack, how do we codify the sentiment based on the emojis they used?

It’s no longer good enough to take 21st Century technology, like smart review and data clustering, and dumb it down to give us a paper output to pass around

These questions represent the world we are already partially living in, and although data abstraction and our ability to wrangle huge datasets are improving constantly, we do not yet have the satisfactory answers that will power e-discovery through the foreseeable future of litigation. Companies that create products to solve these riddles, and the customers that adopt them, will define success in e-discovery over the decades to come.

In the meantime, companies setting out to create and scale a robust e-discovery capability need to start by integrating it into their planning cycles. Procurement processes for records and information management need to integrate e-discovery into their decision-making and sign-off, to make sure that litigation support has been taken into account. Like so many areas of legal operations, having a good plan at the outset is the key to avoiding costly change management down the road. We’re a long way past “where’s the email?” - make sure you’re ready for the new world.