A number of years ago, an outsourcing provider would consider a litigation matter of one hundred folders a huge job. The folders would be copied five times and sent out. Today, we see all different kinds of matters coming in to utilise ever-increasingly sophisticated discovery technology, but the hundred folder photocopy jobs are still here.
The use of the technology expanded as well, not just to litigation, but to corporate investigation and forensic audit. Artificial Intelligence was adopted with the aim of reducing the size of the data set to speed up the discovery and document review process and make proceedings more cost effective for the end client.
This has always been the aim for the Law In Order Consulting team; to ensure that every service provided is not only delivered in a timely way and is of high quality, but is also cost-effective. This aim is reflected in the way that matters are run.
Where Technology is Beneficial
Technology becomes increasingly important the larger the matter becomes. For example, it’s possible to have a relatively small claim being run by a midsize law firm that has ten million documents. Of course, there is no possible way to manually review that many documents in a time efficient way without using technology and using the expertise of consultants.
The technology is applied to matters of all sizes however, particularly as matters often grow beyond the initial scope. Many clients start with a few thousand documents and within a couple of weeks or months, the number goes beyond tens if not hundreds of thousands of documents.
The technology is useful for even a few hundred documents. It’s fully scalable. Countless clients ask for the technology as their matter would become inefficient without it. One of the misconceptions that persists in the market is that a huge matter is required for this technology to be worthwhile. However, standard data processing and eDiscovery techniques and software can be beneficial for small matters as well.
Since the COVID-19 pandemic, more and more people are adopting agile working environments. Using eDiscovery technology can greatly streamline case preparation, review and collaboration while working remotely, not just between lawyers but also between lawyers and their end clients, witnesses or experts.
How Consultants Provide Support
One of the benefits of having consultants with many years’ experience is knowing which parts of the process are useful for a particular matter. It’s not necessary to throw every bell and whistle at a matter from the outset, but an experienced consultant can assist with setting up a structure so that, if a matter does suddenly grow, the technology and processes can easily adapt without delays and the costs associated with it.
A good example of this was a small matter where technology was applied and the correct structures were put in place from the beginning. The matter was completed within two days and the feedback received was that, without using the technology to reduce the data required for review, the client would not have taken on the claim.
It is also important to remember that it is not just about the technology and how to use it. It is critical to undertake a scoping exercise at the outset to identify relevant data sources. Some important questions to ask are: Have all the sources been considered? Is absolutely everything understood about the matter? Have all the individuals involved been identified? Has an audit been done to understand every-thing and every person involved? Has the right amount of information been collected so the affidavit that is requested at discovery stage can be provided? Can your team put their hand on their heart and say they’ve done everything they can to ensure that this was an appropriate process?
Technology’s Adoption by the Courts
As we all know, data growth has increased exponentially in the last decade so that now, terabyte matters are quite normal. We have also seen the widespread adoption of eDiscovery technology, but what has been driving it?
It’s been a perfect storm of cost-conscious clients, exponential growth of data and a judicial system keen to see matters progress. Of course, there have been some practice directions and case law decisions along the way that seem to go against that view, but they appear to have been more the exception that proves the rule.
There have been practice directions around for a very long time that have encouraged the use of technology, it’s just that they were more prescriptive in their use. Now, we have practice directions that talk about the use of predictive coding and artificial intelligence. It’s been heavily pushed from the courts and it’s been the responsibility of the service providers and the law firms to ensure compliance with the requirements, but also efficiency in the process.
In effect, the robots have been here for a while, but the reality is that even in matters that use artificial intelligence to effectively reduce data sets, a significant human element is always going to be required and will remain key to the success of the case. The technology is extremely impressive, but it’s not a replacement for legal teams, eDiscovery professionals or inhouse teams or human review teams. It is simply a way of speeding up and making the eDiscovery phases more efficient and cost-effective.
One of the overarching principles of almost every civil procedure, rule or regulation across the jurisdictions of Australia is the just and expeditious resolution of proceedings. All lawyers using these technologies still have their duty to the court that they must comply with above all else. Beyond that, they have their duty to their client to deliver a commercially viable outcome.
What we have seen over the past few years is that the quantum of these matters is not increasing at the same exponential rate as the related data. This has meant that in order to deliver the value and outcome to the client, the more forward-thinking lawyers have had to demonstrate the viability of the technology and show the way. At every stage, the consultant was (and still is) supporting them.