A conversation with Dominic Jaar, Partner, Canadian Advisor Leader (Clients & Markets) and Forensic Technologist, KPMG in Canada
Q: How has e-discovery evolved over the last 10 years?
A: The market for e-discovery has evolved over the past few years. 10 years ago, most law firms were using their own technology for e-discovery. At that time, the demands on this technology were much lighter and less complex than they are today. Law firms would commonly use a pre-packaged software that was supported by an internal team. As time passed, some large firms with complex case files started to acquire more sophisticated internal systems.
Today, many law firms have come to realize that, cost-wise and return on investment-wise, they are better to have their e-discovery needs handled externally. Today, many firms and large companies use a managed service model in which a third party vendor, with a team of staff, handles e-discovery. This model means that a firm or company does not need to invest capital every 5 years in order to refresh the infrastructure and software used for e-discovery. The managed service model requires that a firm pay a monthly subscription fee to access the service. This allows a legal team to have the support of a large team who are well versed in how the technology works and to work in a hosted or cloud environment where one can add and subtract storage and processing power, quickly and easily, as needed.
Today, we are also seeing more in-house counsel, particularly those who are involved in a lot of litigation, investigation or due diligence, playing a greater role in the e-discovery process themselves. These counsel are seeing benefit in approaching e-discovery providers themselves. When working with external counsel on a file, in-house counsel will give external counsel access to the data in their own hosted solution, rather than the other way around. Being involved in the e-discovery process allows in-house counsel to have greater control over the process, to oversee the quality of the work and to better contain the costs associated with these efforts.
In-house counsel, particularly those in sophisticated corporations or government agencies, are increasingly realizing that e-discovery tools can be used as a powerful document management system. Imagine if you had a system that would systemically classify every document that is loaded into it. If that were the case, each time there was litigation or investigation, production would be as simple as running a search or filter, or two.
Q: What should in-house lawyers be looking for in e-discovery software?
A: To start with a digression; it seems to me that we should kill the buzzword “e-discovery”. In the past this word was used to describe technology that would be used to handle large litigation files. Currently, it is more useful to think of e-discovery as something that is to be used whenever one is dealing with litigation, investigation or due diligence. There is a lot of merit to establishing a process where, from the outset, the same tools are used on all files, from those with a limited number of documents to those that have many documents.
Specifically, legal professionals should be looking for solutions that will allow them to quickly ingest and process most standard file types, easily filter by metadata, do complex keyword searches simply, create workflows intuitively, manage access right privileges to workspaces, cases and files in a granular fashion, be accessible 24/7 from anywhere and collaborate with others within and outside of their organization. All this, from an organisation that is not simply dumping its solutions to increase its market share in order to be acquired by the highest bidder…
Q: What questions should in-house counsel ask of external counsel when it comes to e-discovery?
The first thing that in-house counsel should determine is whether external counsel are going to be paid to print and scan documents or whether that lawyer is capable of working electronically and what kind of systems he uses. Nowadays, e-discovery capability and savviness is a basic expectation that in-house counsel should have of their external lawyers.
In-house counsel should ask their external lawyers detailed questions about e-discovery in order to determine how comfortable the external lawyer is with the processes and technologies involved.
Specific questions should include:
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Who is on the internal team that will be using the technology/tool and have they been specifically trained on it, and ideally certified?There are many litigation support staff members who are simply learning on the job without proper training.Given the sophistication of current e-discovery tools, you don’t want to find yourself in a situation where the person using the tool is only using a small percentage of its capabilities.You also want assurance that the person using the tool is not learning how to use it at your expense.
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Is any of the work externalized to third parties, advisors, document review firms? If so, what is the financial model behind this outsourcing, is it marked up? White-labelled? Will you be expected or permitted to interact with the third party?
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What technology are you using? How long have you been using it and what is the processing power of the tool?
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Where is the technology hosted? Where is it supported?Sometimes the data centre is in Canada but technical support is offshore.
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What security standards does the solution and environment comply with?
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How will the “legal hold” be implemented? How will counsel make sure that no electronic document is deleted or altered before trial and thereby avoid issues with spoliation down the road?Counsel should be comfortable with the processes involved and have a plan for making a working copy of all electronic documents, so that the originals are preserved in a forensically-sound fashion.
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What will the cost be?Based on the number of custodians, documents, and assumptions on the average cull rate, your external counsel should be able to provide you with a fairly accurate quote or budget.Bear in mind that the only time when you will be able to get a realistic quote is once the data has been ingested into the system and some early case assessment has been completed.
Q: What are your predictions for the future of e-discovery?
A: I think that e-discovery will be used in an increasingly proactive fashion to manage records, both for legal purposes and at the enterprise level. In 10 years, we won’t be talking about “e-discovery”, rather, e-discovery will become a fully automated part of the process with which we handle documents. All lawyers currently coming out of law school will be “e-discovery counsel”. In the long term, all judges will understand how a computer works and why the integrity and notion of the “original document” is still important and possible to maintain electronically.
About the author
Alexandra White, Senior Advisor, Legal Affairs, Desjardins