No matter how much technology accelerates cumbersome processes like document review, the human element must always be hovering in the background. When it comes to e-discovery, there are five essential stages to the process: find, collect, review, redact and produce. The further up the chain, the greater the need for human judgement and sign-off.
This may reassure lawyers feeling threatened by the rapid proliferation of legal technology, but it comes with one obvious drawback. A carefully crafted algorithm can be undone in seconds by that oldest of human failings: error. Ultimately, nothing is foolproof. ‘This isn’t a situation where robots will replace the attorneys,’ says Dechert partner and e-discovery specialist, Ben Barnett. ‘Even with all the advances in machine learning, the algorithms are predicting relevance based on human input (coding). You still need smart people who can distinguish a smoking gun document from one that is merely relevant and current programs can’t do that. The potential pitfalls from over-reliance on machine learning run the gamut from missing key documents to production of privileged documents.’
This September, misjudgements in the redaction stage caused embarrassment for Jones Day, following a federal court filing in Virginia. A redacted grand jury testimony used to try to dismiss a claim brought against the firm’s pharmaceutical client, Indivior, was not quite as redacted as initially hoped. This followed a journalist’s discovery that the redacted portions could be read after being copied and pasted into a new document. The chastened firm ultimately had to make an apology to the judge and promise to improve its redaction software training, concluding: ‘We very much regret that this incident occurred and can assure the court that it will not happen again.’
Jones Day is by no means the first firm to have suffered in this way and it certainly will not be the last. Most lawyers concede mistakes will happen, but their likelihood is reduced through quality control and training. ‘All the technology does is find stuff,’ says Stephen Allen, global head of legal operations at Hogan Lovells. ‘It can’t make a judgement call, which requires training. There is an obligation on us to make sure we have a robust process. It can be an enormous time saving, but you still need the humans to do the interpretation.’
E-learning
Huge progress has been made in the advance of machine learning, artificial intelligence and analytics generally. Already law firms are seeing results, with Hogan Lovells claiming it has sped up its reviews by 60-70%. ‘Whether we’re using the analytics to draw out search terms using concepts, or whether we’re using the technology to draft our own smoking-gun document and then use it to rank other documents that are closest to that, the technology has helped us quite a bit to really focus and find the information we need quickly,’ says Mollie Nichols, Hogan Lovells’ global head of litigation support and technology-assisted review.
In the US, further disruptive technologies developed by companies such as Lex Machina and Ravel Technologies are also gaining ground to help with litigation strategy, through the analysis of judicial decisions and lawyer performance. These are considered especially useful in more commoditised and repetitive areas, such as insurance litigation, where companies such as CLARA analytics have made particular headway. The digitisation of US court decisions has made this market much easier to quantify than in the UK, but no one is ruling out similar advances over here. ‘It is coming over to the UK, but the predictive and analytics tools are currently proving more useful in the US as there is much more data available,’ says Steven Baker, a London-based litigation partner at White & Case. ‘Having spoken to US colleagues, it helps them wargame litigation with clients so that they can make a more informed decision in appropriate cases. It’s not a panacea, it’s an assist.’
Cloud gazing
The democratisation of data, and the way in which law firms can leverage it, is also accelerating through the use of software as a service (SaaS) providers and data hosting on cloud platforms, such as Microsoft’s Azure and Amazon Web Services. SaaS models, such as Relativity, have become ubiquitous platforms for e-discovery. ‘The sea change of SaaS will significantly alter the industry,’ says Christina Zachariasen, EMEA lead of e-discovery consulting at Allen & Overy (A&O), which is a major user of RelativityOne. ‘Law firms and corporates will continue to reduce their usage of vendors that provide data processing and hosting services. It’s incredibly freeing not to have to deal with infrastructure and have at your fingertips amazing scale and robustness.’
‘This isn’t a situation where robots will replace the attorneys.’
Ben Barnett, Dechert
When it comes to hosting data on the cloud, one obvious advantage is the economy of scale that companies such as Microsoft and Amazon bring to their security. Vendors also argue that the security is enhanced because data accessed through the cloud only needs one entry point.
‘In the old model, you’d go to a service provider that would host the data outside of your firewall,’ says Bill Piwonka, chief marketing officer at the e-discovery company, Exterro, which mainly supplies corporates. ‘Some of that data is going to go to your outside law firm, so it will go to multiple locations. This means you’re incurring greater risk. In a cloud environment, we’re going to store the documents in a cloud-based repository and we’re only going to collect that document once. This reduces the bandwidth, it reduces the storage, and if you have an attorney come and determine something is subject to attorney/client privilege, they can label that one time so that it will never again have to be reviewed.’
Even firms such as Baker McKenzie, which does over 98% of its e-discovery in-house through its own data centres, is taking notice. ‘Our current workflow with respect to e-discovery infrastructure has been a robust, global on-premises solution,’ says Bryant Isbell, managing director of the firm’s global e-discovery and data advisory group. ‘Given the increase in cloud solutions/offerings, we continue to monitor this space closely and consider options for cloud-based technology solutions that could benefit our end clients.’
Data protection
Most security flaws, if they exist, typically appear in-house. Ian Raine, a vice president of product management at software developer iManage, identifies several areas such as the continued lack of ‘need to know’ security when it comes to protecting documents. ‘We’ve been tracking it for various years. Our expectation was that firms would be ramping that up significantly and closed security would become the norm for new matters, but we’re still not there. They’re all reporting an increased level of auditing by their clients, but they’re not really doing much in the way of change in their approach.’
After security comes the increasingly critical issue of data protection, particularly in the EU following the implementation of GDPR. The flow of data required for multi-jurisdictional disputes means that multiple regulations must be considered. Regulators are increasingly clamping down on breaches, with potential fines reaching US-like proportions. In the UK, the Information Commissioner’s Office (ICO), will fine up to 4% of global revenue. Respective £183m and £99m penalties issued to British Airways and Marriott International in 2019 demonstrates a willingness to hit companies hard. Litigators and litigation process managers must be mindful of the limitations to what they can and cannot do in a discovery process, particularly since there are significant differences in terms of approach, especially with the US. ‘US discovery requirements are very much a broad sweep and hand over everything, so there is potentially a conflict with GDPR requirements, which require you to keep things to a minimum,’ says David Smith, the former deputy data protection commissioner at the ICO, who now works as a special adviser to A&O.
As with most areas of law and business, Brexit also hovers over the horizon. Should the UK leave the EU without a deal, it will have consequences for the international transfer of data, as the UK could be viewed as a third country under GDPR. ‘The UK has said it will recognise the EU, but the EU has not said the same the other way around,’ says Smith. ‘EU businesses transferring data to the UK will have to have mechanisms in place. The most likely mechanism will be contractual terms for protecting the data to EU standards. Protection might not be guaranteed by law, but it should be guaranteed by EU law, but it should be guaranteed by contract.’
Multi-tasking
Ironically, e-discovery could become one of the most potent tools that companies, and by extension their customers, can use for the protection, control and mapping of data. One example is in the growing demand for data subject access requests (DSARs), which can be a major headache for companies that do not have a proper data map. ‘DSARs are considered the purview of the privacy team, and we’re seeing a huge opportunity and convergence between the privacy department and e-discovery,’ says Piwonka.
The potential of e-discovery can also be harnessed in other areas, including regulatory compliance and contract management. While Relativity is essentially designed for e-discovery, its open application protocol interface allows other developers to create plugins. Non-contentious examples include the contract review tool, Heretik, and Trace, which focuses on compliance. This flexibility mirrors the relationships that most law firms aspire to with their clients, whether it is for contentious or non-contentious advice.
‘The trend globally is around becoming more flexible in creating solutions for clients,’ says Libby Jackson, partner and global head of practice for alternative legal services at Herbert Smith Freehills. ‘Instead of saying “here is our menu”, it is more a case of “tell us what you need”.’
How a firm meets those needs will increasingly depend on its ability to innovate and harness technology. LB