All posts in Best Practice & Top Tips

Ediscovery Costs: Pay as you gone?

eDiscovery On-Demand

In today’s no-frills ‘on-demand’ economy, customers apparently want to rent rather than own things. Why commit to purchasing a car when you can order a cab instantaneously? Why take on permanent lawyers in-house when you can hire temps as and when required? And in the ediscovery world, why pay astronomical sums to license technology in-house when you can tender out work to vendors on a project-by-project basis? The way ediscovery technology is bought and sold is a hot topic.

The latter ‘pay as you go via tender’ model has been the preferred modus operandi for most law firms in the UK and Ireland. Many of the firms who have tried to make ediscovery into a ‘profit centre’ by licensing technology in-house have failed to do so. In my experience the reasons for this have included the following:

  • The up-front hardware costs can be enormous;
  • Technology becomes obsolete quickly and law firms are not set up to maintain it;
  • A small team (often only one person) within the firm knows how to operate the technology. The firm therefore becomes overly-reliant on those people; as and when they leave they take the key operational knowledge with them. One firm I deal with has been without a litigation support manager for 2 years and hires external consultants to operate their system on an ad hoc basis;
  • The ‘profit centre’ argument may make sense on paper, but in reality the technology cost is often the first line item to get written off of a client’s bill.

A False Economy?

That said, the tender model is not without its difficulties. Ediscovery is not a taxi service – it is a complex blend of technological and consultative processes which requires matter-specific application. Not to mention time and costs. Associates often spend an inordinate amount of (non-billable) time comparing quotes that seem to require a PhD in Mathematics to comprehend. Even if estimates are put into a standardised format, predicting data volumes can be as kind to the forecaster as predicting the British weather. All of which goes against the maxim that costs in litigation should be both reasonable and predictable.

The reality is that ediscovery is an integral part of the modern litigator’s practice needs. Whilst only some matters proceed to the disclosure stage, the perusal of electronic data is often necessary to assess merits at the outset of a matter. At that stage a client is just about content to invest money in legal advice, let alone to approve a disbursement for technology to enable that advice. Lawyers now need the comfort of an in-house system where they can upload data as and when they please without incurring the stress, time and moreover the uncertainty of a full-blown tender process. Could you imagine having to contact three or four companies every time you needed to conduct some legal research or find a precedent? This has led to forward-thinking law firms pursuing a third option for the procurement of ediscovery services – the subscription model.

Just Sign Here…

A subscription model (aka a Software as a Service model) is a fully-flexible solution which allows you to pay a fixed monthly sum for a certain volume of data to be hosted across an unlimited number of matters. The pricing is set out in ‘bands’ so that you have the flexibility to increase your hosting volume without incurring any extra costs up until you reach the next tier. Each offering is designed bespoke to the client’s needs. The advantages are as follows:

  • There is far greater certainty on costs than under a ‘pay as you go’ model;
  • Lawyers can save significant time and stress by avoiding the tender process;
  • There is a tangible value-add to point your clients to. ‘Innovative’ has become an overused buzzword in law firms’ self-descriptions. Relieving clients of the uncertainty of ediscovery costs and being able to analyse key electronic data immediately when instructed on a matter are strengths to genuinely shout about;
  • There is no need to worry about paying huge up-front sums to invest in technology. Your provider will maintain the hardware and software in their own data centre. Moreover, you will have the ability to host data in any of the provider’s global centres and on any of the review platforms that they offer. I have come across dozens of organisations who are using an outdated review platform purely because at the time they licensed it, it was cutting-edge. As Blackberry has discovered, 5 years is a long time in business;
  • You can build a relationship with people at the provider, and set in motion a style of working that suits your firm, so that you receive a consistent, repeatable service. There is also no concern about an over-reliance on one person at your firm; some of our project managers are considered by their clients as extensions of the legal team.
  • You can decide how to bill your clients for ediscovery services.

How much does it cost?

Naturally, firms will be concerned that a subscription model is only suitable for those firms with the deepest pockets. That is simply not the case. Rather than focusing on costs, you are advised to approach vendors with a ‘wish-list’ of services and a budget in mind (it may be the last time you need to contact more than one provider). We have law firms who are able to service their clients’ needs with a spend of around £10,000 per annum. Small change for speed, reliability, and a competitive advantage.

Time to get off the app and into the driving seat.

About Hitesh Chowdhry

Hitesh Chowdhry joined Kroll Ontrack’s London office in July 2014. He sits as a consultant within the Electronic Evidence Consultancy team, advising lawyers and their clients on how to effectively manage electronically stored documents in litigation, arbitration, and internal or regulatory investigations. Hitesh studied law up to Master’s level at Kings College, London. He trained as a solicitor at City firm Penningtons LLP, and qualified into the litigation department there in 2008. Hitesh moved on to join the Treasury Solicitor’s Department in 2010, where he acted on behalf of the Home Secretary in human rights claims. Prior to joining Kroll Ontrack, Hitesh spent one year working as a document review lawyer at various US firms in the City of London. Hitesh is currently studying an Executive MBA at the Cass Business School, London.

Subject Access Requests: managing the process with minimum pain

Subject Access Request

What is a Subject Access Request?

Under section 7 of the Data Protection Act 1998 (DPA), individuals are entitled to access the information that an organisation holds about them.  The majority of subject access requests arise from former employees who are engaged in a dispute.  However, in this privacy-conscious age, some individuals may simple want to know what personal information a company is holding.

How common are Subject Access Requests?

Because requests only cost £10, more companies are receiving requests from disgruntled ex-employees who want to know what information their former bosses have on them.

How do I fulfil a request?

Delivering the information held on an individual can be surprisingly challenging. Businesses must carry out detailed searches which can include information held in emails, databases, paper records, CCTV records and spreadsheets. In the age of big data, what seems like a simple request on the surface can quickly become complicated and time-consuming.

Once collected, the data must be disclosed in an intelligible form.  Where necessary, companies must include supplementary explanatory information (e.g. if codes have been used) and supply context to the data that has been held, outlining:

  • What personal data has been collected?
  • How was the data obtained and from which sources?
  • Why was data pertaining to the subject processed?
  • Who has received data about the subject

What can be done to make the process easier?

1. Get your house in order
Sprawling data estates and inconsistent approaches to archiving can make searches difficult and inaccurate. Improving information governance in general is best practice, not only for handling subject access requests but for compliance with other legislation such as the GDPR.

2. Nominate a point of contact

Subject access requests must be completed within 40 days of receiving the request. Given the breadth of information held, the request is often handled via multiple departments. Cooperating across departments can challenging and 40 days can quickly disappear. Nominating a single person or department to handle such requests is a great start in streamlining the process and meeting the deadline.

3. Use technology

Ediscovery technology is designed specifically to search, filter and analyse data, making it ideally suited for responding to subject access requests. Ediscovery consultants can advise on how to collect, search, review and produce the data in an efficient, cost-effective and expedited manner.

4. Get expert advice

We guide our clients to consider various sources of information and advise on how to get the data extracted most easily. This may include email systems, server file shares, document management systems, cloud platforms and structured databases such as HR systems or accounting systems.

5. Protect personal data belonging to others

Personal data is often tangled with data belonging to other people or data that is confidential to the company. It is easy to let data pertaining to someone else slip through the net and in trying to comply with the Data Protection act, actually end up breaching it.

Information  should be carefully reviewed before being handed over to the data subject. Managed document review services can assist by reviewing the documents in accordance with your guidelines and flag any concerns about data.

To find out more about managing subject access requests, please contact one of our consultants.

 

A practical guide to predictive coding

Did you miss out on our practical predictive coding event? Not to worry! We’ve created a twenty minute tutorial video that will guide you through the basics of using predictive coding technology.

Presented by Kroll Ontrack’s predicitive coding gurus and using real life case studies as examples, you will learn how predictive coding technology works and how you can use predictive coding technology in your own cases.

We hope you enjoy the video and find it illuminating, but if you have any further questions please get in touch in the comments or by emailing enquiries@krollontrack.co.uk.

Practical Predictive Coding

 

 

Our German Document Review Centre is now open

Following the continued success of our London document review centre and unprecedented demand from European clients, we have now opened our purpose-built document review facility in Germany, located just outside of Stuttgart.

Stuttgart is a city renowned for being home to leading high-tech corporations, financial services providers and law firms, making it a natural location for our services. As Stuttgart boasts excellent transport links, clients from cities inside and outside of Germany are only a train ride away.

Key facts

German-qualified lawyers with a global outlook

Our pool of review lawyers are primarily from Germany and qualified at German law schools, meaning they are experts on German law and are often native German speakers. However, many of our review lawyers speak second or third languages and have extensive experience working at leading global firms.  At the moment, our document review centre is a little like a condensed version of Europe with current reviewers speaking and reviewing documents in  German, English, Spanish, French, Romanian and many other languages!

Designed with reviewers in mind

Our success in London has partly been down to the reviewer-focused way in which our facility is managed and designed and we have followed the same principles in Germany. Our document review centre provides lawyers with comfortable, ergonomic workstations as well as dedicated kitchens and break areas where it is possible to relax and make personal phone calls (mobile phones are not allowed in the review rooms).

As well as the facilities, our document reviewers receive a warm welcome and are invited to take part in socials and networking events alongside our permanent ediscovery team.

Details such as these have proven very popular with review lawyers and have enabled us to attract and retain the best review lawyers in the business, which in turn retains old clients and attracts new ones.

 

Kroll Ontrack’s Canine Forensics Team: Sniffing out the evidence and cutting costs

Kroll Ontrack is pleased to announce our latest weapon against data theft; our Canine Data Defenders. This new service, believed to be the first of its kind in the UK, will enable clients to reduce initial data forensics costs and speed up computer forensics investigations.

How does it work?

A dog’s sense of smell is unbelievably powerful, between 10,000 and 100,000 times as acute as humans, depending on the breed. A useful way of imagining this is to think of the difference in terms of vision; if a human can see an object one third of a mile away, a dog can see the same object 3,000 miles away. It is because of this ability that the dog’s sense of smell has long been utilised in the medical, military and law enforcement fields to detect cancer cells, explosives and drugs.

What do Kroll Ontrack’s dogs look for?

cf dogThe human endocrine system is extremely complex and to a trained nose, compounds found in sweat can reveal much about the human in question’s behaviour and mental state. Someone using a device for illegal activity, for example, is likely to release a greater amount of stress hormone into their sweat which in turn is transferred onto the device via touch. Kroll Ontrack’s canine team has been trained to pick up on these scents and lead handlers to devices that have been used for nefarious purposes. The process is simple and a team of two dogs can check 100 devices within an hour, which is a marked improvement on a human team handling and scanning each device.

After a successful pilot study, the Canine Data Defenders will be available to clients from 31st June 2016.

Kroll Ontrack Head of Computer Forensics , John Perro, commented “This is not about substituting human knowledge but about saving our clients’ time and money. Our dogs can pinpoint a machine used for suspect activity within seconds, allowing our human team to get straight into a type 2 data analysis.  We can also see applications in internal compliance investigations.  A quick sweep of an office using our dogs will provide compliance officers with a quick and accurate spot check of the company’s activities.”

A second team of dogs is currently in the final stage of training to provide early-evidence services for our ediscovery team, further cementing the role of dogs at Kroll Ontrack.

How can banks reduce litigation and investigation-related legal costs?

How can banks reduce legal costs?

Last week over 50 corporate in-house counsel and lawyers working in the financial sector gathered in the rather glamorous surroundings of the Banking Hall to join Kroll Ontrack  for our breakfast seminar, ‘Banks or Law Firms: Who holds the purse strings’

After a delicious breakfast, our illustrious panel tackled the complex and often, controversial topic of managing legal costs for banking-related investigations and litigations. The key themes up for debate were:

  • How recent ‘big ticket’ regulatory investigations have affected the banking world
  • Using the latest predictive coding technology to reduce legal costs
  • Leveraging corporate buying power when using law firms and other professional service providers
  • Discussing alternative pricing structures
  • Examining the pros and cons of unbundling legal services

The debate was moderated by Ben Fielding of Kroll Ontrack and our speakers included Elizabeth Meekison a Senior Lawyer in Commercial Litigation atLloyds Banking Group,  Mark Humphries – Senior Partner at Humphries Kerstetter, Thomas Leyland, Partner at Dentons and,  Orion Wisness, Discovery Consultant at Kroll Ontrack. With representation from in-house counsel from banks, senior partners from top law firms and a technology provider, each brought their own experiences and opinions to what was an eloquent, wide-ranging, and informative discussion.

The key points that emerged were:

Priorities for banks:

  • Banks value accuracy, defensibility of process and not necessarily lower costs when it comes to ediscovery
  • Working collaboratively with law firms and technology providers and ensuring regular and effective communication

The benefits of proactivity:

  • The importance of involving an ediscovery provider from the beginning of the disclosure process or investigation.
  • How implementing information governance strategies and managing the quantity and location of your data can reduce costs.
  • How fixed fee modelling could be implemented (and why this might not be a possibility in certain cases.)

Legislative concerns:

  • Are the standard disclosure rules too broad?
  • In light of spiralling data volumes, should the disclosure rules be modified so they are closer to the arbitration model?

The importance of predictive coding technology

With the recent judgement (Pyrrho Investments v MWB Property [2016] EWHC 256 (Ch)) approving the use of predictive coding still hot news, much of the debate and audience’s questions were focused on:

  • How technology such as predictive coding can be used to reduce the burden of big data in litigation and investigations
  • The implications of the recent judgement approving use of predictive coding technology in the UK
  • The need for both corporations and law firms to fully understand exactly what predictive coding entails in terms of both its capabilities and its limitations

We would like to thank speakers for taking the time out of their busy schedules to take part in the debate and share their expertise. We’d also like to thank our guests for joining us and further enlivening the discussion with their considered questions.

 

Is it time for banks to take greater control of their legal spend?

Legal fees incurred by banks can have a huge impact on profits. Deutsche Bank provides a prime example of this; according to data from Bloomberg, they have spent more than any other European financial institution due to a combination of regulatory fines and litigation costs.  Around 1.2 billion euros were earmarked for litigation. These legal costs have, in part, led to the bank reporting a  2.1 billion euro loss in the fourth quarter with the bank’s stock falling to the lowest value since 2009. In contrast, Bank of America’s profits rose by 10%, in part due to a reduction in spending on legal fees.

This leaves in-house lawyers in an awkward position when regulatory scrutiny and in-progress litigation cases are unavoidable but they are facing more pressure to cut cost.

The first port of call for any in-house counsel managing regulatory investigations is usually a trusted law firm, Yet, with the culture of billable hours being so prevalent, are law firms in the best position to provide the improved efficiencies and reduced costs in-house counsel are seeking?

Indeed, such is the concern about spiralling legal costs that the Competitions and Markets Authority, an organisation more associated with causing legal fees, recently announced that plans to investigate law firms in light the following concerns:

  • Whether clients can drive effective competition by making informed purchasing decisions;
  • Whether clients are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong;
  • How regulation and the regulatory framework impact on competition for the supply of legal services.

Kroll Ontrack is hosting a seminar discussing this difficult topic, with speakers from leading banks (Lloyds, Barclays) and top law firms (Dentons and Humphries Kerstetter). In what will no doubt be a fiery debate, the panel will discuss:

  • How recent ‘big ticket’ regulatory investigations have affected the banking world
  • Using new technology to reduce expenditure
  • Leveraging buying power when using law firms and other professional service providers
  • Discussing the relative merits of fixed fee vs billable hour pricing structures
  • Examining the pros and cons of unbundling legal services

To register for the event, please click here.

 

 

 

9 Reasons Why Lawyers Don’t Use Machine Learning on Review

Okay, so 9 isn’t a nice round number. I originally started with 5 which didn’t fully convey the message and although I didn’t quite make it to 10, I hope on reading this blog some of your hang ups around predictive coding ( or machine learning/technology assisted review/artificial intelligence, whatever you want to call it) are allayed.

One thing I am sure of is that many lawyers are missing a trick by failing to make use of some of the advanced forms of legal technology available today. We’ve been harping on, as an industry, about this subject for years and I feel like we, as providers, need to take the majority of the blame for not making it easy for clients to appreciate the value of adopting a new approach to legal review.

After all, lawyers’ clients are becoming more demanding in relation to fees, and information governance doesn’t seem to be keeping pace with the volumes of data generated so unless you want to spend extortionate amounts trawling through irrelevant data you need, at some point, to seek a different way.

  1. My client has to pay extra for this service

It is true that sometimes you have to pay for efficiency. However, that doesn’t mean that those prices must break the bank. We, along with a handful of other providers, have developed our own software with our own machine learning capabilities and these are all available within the usual processing charges. This technology therefore doesn’t have to cost any extra but it does depend on the review platform selected.

  1. I’m expected to hold back on a full scale review while a reviewer codes a sample set

I suspect this notion came about through hesitancy on the part of providers to trust the technology themselves and this went on to pervade the industry. Our recent experience with machine learning reinforces the opinion that you don’t have to set up your review team in a certain way to realise the benefits from the technology. Although ideally we’d like to apply the machine learning to a specific individual, that doesn’t preclude other reviewers from categorising documents concurrently while the system finds its feet.

  1. I don’t feel confident defending this review strategy under scrutiny

Confidence is born out of experience and while I concede that it’s more difficult to become comfortable with ‘black box’ technology than keyword filtering, for example, that’s a journey we’re here to help with. I should also make it clear that machine learning can be used in conjunction with any other filters you apply. Most clients who are converts to machine learning began this journey by simply using the system to prioritise documents. As the system learns from the decisions being made it will award percentage relevance figures to each document and will push documents up through batching to ensure reviewers are seeing the most relevant documents sooner. On the vast majority of the projects we work on the statistics (we’d update you regularly during a review) support the fact that relevancy rates increase rapidly after the first couple of days of coding and fall away gradually a few days into the review and will usually look something like this…

machine learning

  1. The computer intelligence may miss a hot document

I suppose this is an extension of the reservation above. Machine learning doesn’t need to be used to cull documents although this is often a consideration in the latter days of a review when you’re presented with review progress such as that above. There does not need to be any risk attached to using this approach. The more regularly you use prioritisation the more comfortable you’ll feel with the technology and it can then be trusted to run effective quality checks either of human reviewers or the remaining pool which you’re considering casting aside.

  1. I need to review all my documents in any case

But wouldn’t you prefer to strike upon those which are relevant earlier in the process?

  1. It’s too complex and I don’t trust the technology

It’s not necessary to understand the algorithms behind the technology, although we do have people who can go into this level of detail if needs be. From my perspective, I understand how the different machine learning offerings out there differ but I’d be more concerned about the results of the review as these should speak for themselves.

  1. I won’t be able to charge my client as many billable hours

Okay, I admit, a lawyer has never used this as an objection (at least without a wink of an eye and a wry smile) but there’s no harm in stirring a little controversy! Truthfully, in my experience, lawyers genuinely want to do what’s best for their client and it’s the lack of trust in the technology that prevents them from taking advantage of the cost savings which this technology can bring about.

  1. There’s no precedent for using the technology

First thing to say is that if you’re just using machine learning for prioritisation then a precedent isn’t needed. You’re still reviewing all the documents so you’re unimpeachable. The most recent decision relating to culling documents using the technology has taken place in the Irish Courts in the Irish Bank v Sean Quinn case. This use of predictive coding technology is a creeping inevitability and those early adopters will not only benefit from the experience but will also stand out through the lens of their client as being technology savvy and will attract more business as a result.

  1. I don’t have enough documents to justify its use

In line with the above reasoning, we routinely recommend and use machine learning to bring forward relevant documents on all projects above 10,000 documents. Although the power of the technology won’t be as acutely harnessed as it would be on a larger data set, you would still recognise benefits even with these relatively small document numbers.

 

About Chris Chapman

Chris Chapman joined Kroll Ontrack in June 2014 and is responsible for the team of Legal Technologies Consultants serving clients in the UK. Chris’ aim is to strengthen the relationships with those who instruct Kroll Ontrack for ediscovery matters and to seek new opportunities with those who have not worked with us. Chris’ day to day responsibilities include arranging and attending meetings with law firms and corporate organisations to provide advice on ediscovery best practice and overseeing specific projects to ensure they are handled in the most cost effective, efficient and defensible manner. His main focus is the client; Chris is able to tailor advice based on the technical expertise and experience of the customer, respond efficiently when queries or changes to project circumstances arise and eliminate, where possible, uncertainty inherent in electronic evidence matters. Prior to joining Kroll Chris spent 10 years with Thomson Reuters (Legal) where he held various posts in the sales department, culminating in managing a small team responsible for barristers’ chambers subscriptions to legal information websites. He joined Thomson Reuters shortly after obtaining a degree in Business Management at Bradford University.

Mergers & Acquisitions: Ediscovery takes centre stage

Ediscovery technology has a long association with litigation, so you may be forgiven for wondering about the link to mergers & acquisitions, traditionally the domain of corporate deal-makers.

However, as regulatory scrutiny has increased on a national and international level, more law firms and in-house counsel are using ediscovery technology to swiftly dispense with formal Requests for Information (RFIs).

At the same time, anything that threatens the successful closure of a deal, or the integration of merging businesses is something that is generally investigated using ediscovery and forensic procedures.

Our clients come to us for assistance with matters that stem from the M&A process. Pre- and post-merger audits and merger control RFIs from regulatory bodies such as the European Commission, the UK Competition and Markets Authority, the French Autorité de la concurrence, the German Bundeskartellamt as well as the US Department of Justice are at the top of the menu.

Using ediscovery to enhance due diligence

The time prior to a merger or acquisition deal being finalised is critical, and data from entities being merged or acquired must be assessed as part of due diligence duties. In the past, these reviews typically focused on data in the form of financial reports and accounts; legal documents such contracts and intellectual property; asset valuations and company policies.

However, in this digital age, examining surface level information may not be enough to confidently be sure the deal is not risky or that combining with another company will not create risks.

If the company being acquired operates within markets that have seen anti-competitive behaviour or in countries with a greater incidence of corruption and bribery, it may be prudent to conduct a broader investigation into the company’s activities by examining a selection of unstructured data in audits.

What is unstructured data and why is it important for mergers and acquisitions?

Unstructured data largely consists of personal correspondence in the form of emails, text messages, voice mails and web-based messaging systems such as WhatsApp. Within even a medium-sized organisation the amount of data generated by these applications is enormous. For a global firm, the volume of data is almost unimaginably large. Yet just a handful of incriminating emails containing evidence of cartel activities that have serious repercussions at a later date should a regulatory body decide to investigate concerns relating to dominance.

By the same token, structured data (which is normally transactional data, stored in tables to record things like customers, products, orders and payments) may also be examined to look for anomalies that might signal a compliance risk using specialised data analysis tools and visualisation software.

Intelligent review technology is aiding strategic decision-making

Ediscovery technology can make short work of huge data sets both collecting, filtering and analysing data to get to the key information as quickly as possible. Armed with potential risks or given a clean bill of health, informed decisions can be made surrounding the deal, which can then proceed in a compliant and timely manner.

If this kind of investigation has not been possible prior to the merger or a company has doubts about an entity it has acquired or merged with, clients also come to us for post-merger compliance investigations which vary in scope from the very focused to the very broad. Ediscovery technology can also assist on an operational level by harmonising data estates of the merged companies.

Taking the pain out of Phase Two Requests for Information

If the European Commission is worried about the possible effects of a merger on competition, it may conduct an in-depth analysis of the merger in the form of a Phase II Investigation.

This is involves a more extensive information gathering exercise, working to a strict time-table, similar to ediscovery in the US or edisclosure in the UK. Looking at the deal from a variety of angles, (e.g. whether the proposed merger would create a monopoly, whether it will impact on the supply chain or increase the likelihood of price-fixing cartels forming between competitors), Phase II Investigations can be data intensive exercises, needing ediscovery expertise to ease the deal through.

Ediscovery services can help ensure this process runs more efficiently for the parties involved by:

  • Assessing the likely complexity and cost of the data retrieval exercise, to support efforts to reduce the scope of an RFI.
  • Assisting internal IT teams in the collation and collection of the data requested
  • Ensuring this data is stored securely and processed quickly
  • Providing analytical tools to check documents are relevant to the request and do not fall under privilege
  • Working in a timely fashion to ensure the request for information deadline is met.

Phase II Investigations are often time pressured and delays can threaten the completion of a deal, so it is important to ensure that all teams are focused on the overall goal of the proposed merger.

Working with an ediscovery provider can expedite the submission of requested information, potentially speed up any decisions or remedies and get the deal through.

If you would like to find out more about how Kroll Ontrack can assist with mergers and acquisitions, please contact Rob Jones.

About Rob Jones

Robert Jones is the manager of Kroll Ontrack’s team of Legal Consultants in Continental Europe, the Middle East and Africa.

Perhaps, perhaps, perhaps…

I’m a man who likes straight answers and it’s part of my role as a technologies consultant to speak to clients in a language which they understand. So when seeking clarity in the unpredictable world of ediscovery the disconcerting reply of ‘it depends’ can become frustrating. However, I’m learning to accept that without perfect information, whether that be how an end client’s IT infrastructure sits or what a law firm is trying to achieve on their client’s behalf, it’s often the only appropriate answer to my questions.

Questions like:

  • Could we perform a remote collection for the client?
  • Is it possible to extract the data from the client’s database?
  • How long would it take to review those documents?
  • Will we be able to retrieve that deleted data?
  • What would be the best way to approach this case?
  • How many hours of professional support will this case require?
  • Should the client be collecting their own data or leaving it to the professionals?

The fact that my colleagues are willing to elaborate on this two word answer based on their experience of previous matters means I can provide more certainty for my customers but one is often reliant on the client themselves to provide accurate information and through no fault of their own, this isn’t always possible.

Information technology is at the heart of every edisclosure project and the fact that lawyers and their clients often don’t know what they’re looking for until they find it makes the process inherently unclear. To illustrate, we’re often asked by companies to collect their data to ensure defensibility and allow flexibility should the direction of an investigation or piece of litigation change during the ediscovery project. Our computer forensics team will only know for certain what the collection entails when they get their hands on the data itself. For our clients, however, an hourly rate and a ‘finger in the air’ approach to estimates simply won’t do. It’s imperative, therefore, that we gather as much information as possible about the nature of the data. But when you consider this information often resides in the IT department of an organisation, who (in ideal circumstances!) have relayed this internally and then it’s been passed to an external law firm before finally reaching us, you can see this is a paradigm which is difficult to realise.

Set this scenario against a client who wants complete certainty as to the costs associated with a project. This is the challenge we as ediscovery providers face every day. We want to provide fixed costs for the law firms and organisations who tap into our edisclosure expertise and technology, but in order to achieve this we need perfect information and collaboration with those who hold the information. This becomes even more convoluted when you throw in cross border elements because it’s hard enough for the organisations themselves to get to grips with their data.

There’s no doubt that many savvy lawyers now differentiate themselves by understanding more about edisclosure and advising their clients how to use technology to ensure the best result in the face of litigation or regulatory investigations. Edisclosure providers also have a part to play in their relationships with the end clients and a partnership between the two inevitably leads to a better understanding of the challenges of gathering the particular organisation’s data which has a knock on effect in terms of certainty of costs and dealing with these cases in a timely manner.

About Chris Chapman

Chris Chapman joined Kroll Ontrack in June 2014 and is responsible for the team of Legal Technologies Consultants serving clients in the UK. Chris’ aim is to strengthen the relationships with those who instruct Kroll Ontrack for ediscovery matters and to seek new opportunities with those who have not worked with us. Chris’ day to day responsibilities include arranging and attending meetings with law firms and corporate organisations to provide advice on ediscovery best practice and overseeing specific projects to ensure they are handled in the most cost effective, efficient and defensible manner. His main focus is the client; Chris is able to tailor advice based on the technical expertise and experience of the customer, respond efficiently when queries or changes to project circumstances arise and eliminate, where possible, uncertainty inherent in electronic evidence matters. Prior to joining Kroll Chris spent 10 years with Thomson Reuters (Legal) where he held various posts in the sales department, culminating in managing a small team responsible for barristers’ chambers subscriptions to legal information websites. He joined Thomson Reuters shortly after obtaining a degree in Business Management at Bradford University.